Lord Falconer of Thoroton: My Lords, naturally, I reflected on the fraud Bill. I looked at the Joint Committee's report, which said:
	"In addition the evidence points to the emergence in recent years of a practice that the House of Lords will usually give a Second Reading to any government Bill, whether based on the manifesto or not. We offer no definition of situations in whichan attempt to defeat a Bill at Second Reading might be appropriate".
	So it might be regarded as unusual. I also reflected on the casino order. The report concluded, on the basis of the evidence, that:
	"The House of Lords should not regularly reject statutory instruments, but in exceptional circumstances it may be appropriate for it to do so".
	One of the exceptional circumstances is whenspecial attention is drawn to an instrument by the Lords Select Committee on the Merits of Statutory Instruments, so it might be okay. However, I am worried that there was a fatal Motion supportedby the Liberal Democrats on 11 December 2006, another one on 9 January 2007, another one on 21 January 2007, another one on 27 March 2007 and another one on 28 March 2007. It is quite difficult to see that as being exceptional. The Liberal Democrats continue to exercise power without responsibilityin this House—the prerogative of the noble Lord,Lord McNally, throughout the ages.

Lord Strathclyde: My Lords, does the noble and learned Lord agree that this House should reject aBill at Second Reading only in the most unusual circumstances and only after a great deal of reflection? Can he confirm that what happened with the jury trials Bill did not break the Salisbury convention in any way and that the excellent Cunningham report did not say that a Second Reading should be given every time a Bill is presented to the House? Furthermore, on the casino vote, was it not the case that the business management between the House of Commons and the House of Lords was not done as wisely as it could have been, with the vote in this House coming before that in another place? Is it not also true that the majority of three would have been reversed if all Members of the government Front Bench had voted?

Lord Falconer of Thoroton: My Lords, on the first point, I agree on the excellence of the Cunningham committee's report. I am sorry that my noble friendis not in his place today to be congratulated onit yet again. Secondly, I agree, as I said, that the conventions report allows, in exceptional cases,for there to be a defeat at Second Reading. Whethera defeat is exceptional, in relation to Bills and to statutory instruments, cannot be looked at in isolation; it has to be looked at over a long period. That is why I draw attention to the number of fatal Motions that are currently being proposed. Finally, it could not be said that anyone was acting irresponsibly not to vote at all, let alone not to vote for a fatal Motion, which appeared to be the implication of the noble Lord's last question.

Lord Falconer of Thoroton: My Lords, I would regard the noble Lord, Lord Tomlinson, as being not in the autumn of his years but in the spring of his years. I thought that the noble Lord, Lord McNally, had signed up to a report that said that there were certain exceptional circumstances at Second Reading and with statutory instruments where it was quite legitimate for this House to say no. I completely agree with that. As I understand it, every time the Liberal Democrats disagree with something on civil liberties grounds, they will regard that—despite what the noble Lord, Lord McNally, signed up to—as a legitimate reason to say no. The critical aspectof the Cunningham report on conventions is that disagreement in this House is not of itself sufficient reason to say no. I am worried about what the noble Lord, Lord McNally, is prepared to sign up to, when he then does something different.

Lord Falconer of Thoroton: My Lords, I have always understood that Motions are rejected or not by people either voting against them or in favour of them. The critical step in rejecting things is people voting against them. You cannot distinguish, as the noble Lord seeks to do, between people voting against a Motion and the Motion being defeated.

Lord Falconer of Thoroton: My Lords, that is for others to judge. All that I thought we had agreed toin January was to comply with what was said bythe conventions committee of the noble Lord, Lord Cunningham. The House made that commitment in January. I make it clear that I am not saying that the House has broken that—we must look at it over time—but it must be clear that we stand by our commitments.

Baroness Scotland of Asthal: My Lords, I agree with my noble friend that we need to do as much as we can in that regard. Therefore, I am delighted to say that we have made significant improvements. Prison officers are being trained in mental health awareness; and £600,000 has been invested over three years in mental health training for prison staff, whichhas ensured that we have a better provision. We are moving more people than ever before out of prison into secure and appropriate mental health treatment. That inures to the benefit of those individuals; italso enables us to meet better targets on reducing reoffending.

Lord Drayson: My Lords, first, I am sure that the whole House will want to join me in offering sincere condolences to the families and friends of Corporal Ben Leaning, Trooper Kristen Turton and Kingsman Alan Joseph Jones, who have died in the past week during operations in Iraq.
	As my right honourable friend the Secretary of State for Defence has made clear, force protectionis our top equipment priority on operations, but operations can never be made risk-free. Our overriding aim is to ensure that the Armed Forces are successful on operations and that they have the equipment to achieve that.

Lord Drayson: My Lords, on the composition of Lieutenant-General Fulton's inquiry, I am happy to write to the noble Lord and place a copy of theletter in the Library. On the review by this Houseof the outcome of the inquiry, I would welcome feedback from opposition spokesmen on what they want the composition to be. I am open to suggestionsfrom noble Lords on what they think would bethe appropriate composition of that team in the circumstances.

Lord Drayson: Yes, my Lords, I am confident.The provision of protected patrol vehicles such as Bulldog, Mastiff and Vector is a top priority for me. The progress that we have made—for example, fielding Mastiff from start to finish in under six months—shows the priority that we give to this.

Lord Marlesford: My Lords, does the Minister recognise that the more information comes outabout the Army's Bowman radio system, the more unsatisfactory it looks? Not only is there the basic problem of the infantry sets being too heavy for them to carry with their other equipment, but there is more and more evidence that the software is not working. Will the noble Lord now put someone into the Ministry of Defence who is in total charge of Bowman, reporting directly to him to get the right results from this vital bit of equipment?

Lord Triesman: My Lords, Amnesty International's report on the increasing use of the death penalty in Iraq is of the most serious concern. The British Government are firmly against the use of the death penalty in any circumstances and in all cases. Since the Iraqi Government reintroduced the death penalty in 2004, the United Kingdom, together with the European Union, has repeatedly raised our policy of opposition to the death penalty at the highest level, including with the Iraqi President and Prime Minister.

Lord Wallace of Saltaire: My Lords, can we have an honest assessment of just how much influence the British Government any longer have over the Iraqi Government? I am not quite clear of our status and links now that we have withdrawn from three ofthe four provinces for which we were previously responsible. Yesterday, I noted from the report bythe Secretary of State for Defence that we haveresumed patrolling in the Gulf. However, the Iraqi Government appear to listen mainly to the US Administration, who as we know are actively in favour of capital punishment. I recall a senior member of the Bush Administration saying that they were in favour of more capital punishment. Do the Iraqi Government listen to us on these or other matters?

Lord Triesman: My Lords, I strongly agree with the tenor of those questions. That is why we are putting resources into the training of the judiciary and of senior lawyers involved in cases of this kind. There are real reasons why we should be optimistic that the period during which the death penalty is being usedto this extent is passing, not least the fact that the President of Iraq is himself opposed to the use of the death penalty. The Prime Minister of Iraq takes a different view, but powerful forces are pulling in the direction of ending the death penalty.

Lord Dholakia: My Lords, we had a lengthy discussion on these amendments in Committee. We said then that we would listen to the Minister's arguments and come back on Report. Needless to say, we are still concerned about serious crime prevention orders, which are probably the most contentious proposal in the legislation. We have been assistedin our amendments by Liberty, which objects in principle to the imposition of serious crime prevention orders on people who have not been convicted of any crime. We doubt seriously whether they will work in practice and consider them to be an unacceptable legal shortcut that goes against basic British values like the presumption of innocence and the right to a fair trial. We seek to address some of the most unjust and dangerous aspects of this proposal.
	At this point, I want to say how delighted I am that the noble and learned Lord, Lord Lloyd of Berwick, has joined us with his Amendment No. 36A, which is grouped with our Amendments Nos. 1 and 2. Further, this morning I received the relevant report of the Joint Committee on Human Rights, and I may use some of its observations. The Minister will have an opportunity to comment on what the committeehad to say.
	Amendments Nos. 1 and 2 clarify that in serious crime prevention order applications, the criminal standard of proof will apply when establishing whether the conduct justifying the orders took place. They would not affect the standard of proof applied when a court determines whether an order would protect the public. What is our argument? It is a key principle of the English legal system that more rigorous standards are applied to criminal trials than to civil proceedings. A civilised and democratic state can justify using greater force to punish an individual and restrict their rights only if it has been established beyond reasonable doubt and on the basis of reliable evidence that the individual has committed an offence deserving of such punishment. The Governmenthave insisted that these orders are not punitive but preventative, and that civil rather than criminal fair trial standards are therefore appropriate.
	Neither Liberty nor those of us on these Benches are convinced. The orders would impose severe restrictions on individual rights and freedoms, including a restriction on with whom a person can communicate and where they can live, work or travel. They would enable criminal sanctions to followfrom doing something that was not itself a crime,and would attach the stigma of serious criminality to their recipients. It is difficult to see how such severe restrictions on an individual's freedom of movement could be characterised as anything but punitive. No amount of dressing up of the language will convince us otherwise.
	For that reason, the amendments would make it clear in the Bill that the criminal standard of proof applies and requires the criminal rules of evidenceto be adhered to. We believe that the appropriate standard of proof to apply in establishing whether the conduct justifying the orders has occurred should be the criminal test of "beyond reasonable doubt", rather than the classic lower civil test of "on the balance of probability". The Government and the courts appear to agree with this. I quote the noble Baroness, Lady Scotland, when she indicated at Second Reading that in practice the courts are likely to use the version of the civil standard that is similar to the criminal standard:
	"where serious assertions are made, the civil standard can be virtually the same on certain issues as the criminal standard. Recent case law has stated ... that in proceedings like thesethe court will look at the civil standard as a sliding scale, with the likely standard of proof for these orders being very close to the criminal standard of 'beyond reasonable doubt'".—[Official Report, 7/2/07; col. 729.]
	She did not suggest that this was a concern for the Government. The only difference between us and the Government on this point, therefore, seems to be whether this should be stated in the Bill or left to judicial discretion. We see no reason why Parliament should not make the applicable standard clear in the Bill and thereby increase legal certainty.
	I now come to the report of the Joint Committee on Human Rights, published this morning. The committee makes two major observations and they are very useful points which support the amendments we have put forward. It says:
	"In our view, however, a combination of the implication that a person has been 'involved in' serious crime, the severity of the restrictions to which they may be subject under a SCPO, and the possible duration of such an order (up to 5 years and indefinitely renewable) means that in most cases an application for a SCPO is likely to amount to the determination of a criminal charge for the purposes of Article 6 and therefore to attract all the fair trial guarantees in that Article".
	It goes on to say:
	"In our recent work on counter-terrorism policy and human rights we have drawn attention to the unsustainability in the long term of resort to methods of control which are outside of the criminal process and which avoid the application of criminal standards of due process. We are concerned that the introduction of SCPOs represents a similar step in relation to serious crime generally. In our view, the human rights compatible way to combat serious crime in the long run is not to sidestep criminal due process, but rather to work to remove the various unnecessary obstacles to prosecution, for example by relaxingthe current prohibition on the admissibility of interceptmaterial, lowering the charging threshold, allowing post-charge questioning and the drawing of adverse inferences (with appropriate safeguards), and enhancing the incentives to give evidence for the prosecution".
	This issue will not go away. There is still time before Third Reading to resolve it, and I look forward to the Minister's response. I beg to move.

Lord Lloyd of Berwick: My Lords, in Committee, the noble and learned Lord, Lord Mayhew, who I am glad to see is in his place, described the amendment as being of great importance, and he was surely right. It is important because a person should not be subject to the prohibitions and restrictions on their personal freedom which are set out in Clause 5, unless the case against them is established on a criminal standardof proof.
	I listened very carefully to the Minister's reply in Committee and I have read it in Hansard. She made two main points; first, that in civil cases, the more serious the allegation, the higher the standard of proof. As a general statement, that is true. She said that the civil standard would suffice here because it can come very close to the criminal standard—so close as to be virtually identical. But, with great respect, that argument will not do. This very point was decided unanimously by the House of Lordsin the case of McCann. It concerned an ASBO. The House of Lords did not say that in an ASBO case the standard of proof came very close to the criminal standard of proof or was virtually identical to it; the House of Lords said that it was the criminal standard of proof. That is the purpose of the amendment.
	The Minister invited me to read again the McCann case lest I had misunderstood it. I have done so, but I repeat what the noble and learned Lord, Lord Hope, said in the case at page 825, 2003 1 Appeal Cases:
	"Given the seriousness of the matter, the court should be satisfied to the criminal standard".
	The noble and learned Lord, Lord Steyn, said atpage 812 of that report that magistrates,
	"must in all cases ... apply the criminal standard".
	That could hardly be clearer. Although the Minister's arguments are often very plausible, she cannot plausibly argue that the standard of proof should be less in serious crime cases than in ASBOs, nor surely can she argue that we should depart from the law so recently laid down unanimously by this Housein McCann. I suggest with diffidence that it is sometimes helpful in legislation to call a spade a spade. If the standard of proof is going to be the criminal standard, as it should be, let us call it just that.
	The Minister's second argument in Committee was that there are two separate stages under Clause 1. At stage 1, the court must be satisfied that the person is involved in crime; at stage 2, the court must have reasonable grounds for making the order. She is right: there are two separate stages. As she pointed out, stage 2 involves a question of judgment and it does not make sense, when one is concerned with a question of judgment, to talk about a standard of proof, whether civil or criminal. I agree. However, the amendment does not touch on stage 2; it touches only on stage 1. It is all the more important that, at stage 1, the criminal standard of proof should be applied because of the extraordinary width of the definition of being involved in serious crime contained inClause 2(1)(c). I have never seen anything like that provision in a criminal or quasi-criminal statute. I am very doubtful whether it would the pass the test of legal certainty. But no amendment to Clause 2(1)(c) is proposed, so I say no more about it. On the question now before the House, I submit that the casemade out for the criminal standard of proof is overwhelming.

Baroness Anelay of St Johns: My Lords, the report of the Select Committee on the Constitution set out clearly the challenge that faces the House today in our scrutiny of Part 1. It said:
	"A broad question for the House is whether the use of civil orders in an attempt to prevent serious criminal activity is a step too far in the development of preventative orders".
	That is what has guided us on these Benches in how we have approached our consideration of Part 1. In these amendments we reach the core of the objections of the noble Lord, Lord Dholakia, to Part 1.
	I have always made it clear that it is vital thatthe Government—any Government, indeed—should protect the British public from those who do everything they can to encourage serious organised crime, profit from it and yet ensure that their own hands do not appear dirty in public. They keep in the background but profit from it by millions and billions of pounds and cause destruction to people's lives. We know that it is difficult to take measures to protect the public from people like that, but we also know thatwe must try to do so. However, the methods that we adopt must be proportionate and effective—the two go together—without undermining our own system of law and justice.
	The Select Committee's report makes it clearthat we should consider whether the Government's proposals in Part 1 would undermine that systemof law and justice. The best weapon against serious criminals is, of course, to track them down, charge them, prosecute them and hope to secure a conviction to put them behind bars for a very long time for the protection of the public. That is what prison should be about; we remain firmly of that view.
	In Committee, I tabled a large number of probing amendments to give the House the opportunity to examine the whole range of the impact of the provisions in Part 1, and particularly to examinethe principle and practice that should underpin the imposition by our courts of these new serious crime prevention orders. My objective was to give noble Lords the fullest opportunity in Committee to determine whether the new civil injunctive orders were a step too far or whether there might be grounds on which they should be tolerated. The Minister gave careful and detailed explanations in her responses in Committee. We did not agree with everything thatshe said; we did not believe that all of her responses were satisfactory; but we certainly recognise that amendments tabled by the Government today make improvements to the Bill that may be sufficient for us to accept that Part 1 should stand part of the Bill, although we remain seriously sceptical about the effectiveness and the range of the Government's proposals.
	I am very grateful to the Minister for meeting my noble friend Lord Henley and me last week to discuss the proposals in the Bill and for her subsequent telephone conversations and meetings this week regarding potential government amendments, some of which we and other noble Lords saw only at the last minute. They do make improvements, and the Minister was able to develop further the Government's position regarding the justification for the proposals in Part 1. She further explained the protections that she believed would be in place. Those meetings and explanations have been helpful and I invite the Minister today to put on record clearly the effect of the reassurances that she gave.
	We would certainly prefer the criminal procedure to be adopted for applications for serious crime prevention orders if it is at all possible—we are atone with the noble Lord, Lord Dholakia, on that. However, we recognise that that would scupper the very attempt that the Government have made in introducing serious crime prevention orders. The Government have made it clear in the past that they expect criminal prosecutions to proceed wherever possible, that applications for serious crime prevention orders should be used as a last resort and that it is anticipated that the number of such applications should be low—perhaps about 30 a year. We hope that that would mean that it is not a case of a lack of resources but that they are being properly targeted. I hope that the Minister will take the opportunity to be robust on all those matters today.
	We have considered our position extremely carefully between Committee and Report as to whether we should join the noble Lord, Lord Dholakia, in attempting to remove Part 1 from the Bill. Let us be in no doubt that the result of these amendments would be to render the effect of Part 1 null and void. That is what we are about when we consider these apparently innocuous and reasonable objections of the noble Lord, Lord Dholakia.
	We have concluded that we shall not support these amendments. We wish to give the Government the opportunity to prove that serious crime prevention orders can operate without undermining our system of justice and can trammel the activities of those around the world who profit from crime in such an evil way.
	I realise all too well that the resources of our police and law enforcement agencies have been extremely stretched over the years as they have struggled to bring these people to justice. We have seen a recent example where it has taken about 20 years to nail somebody, and not necessarily on the offences with which the police would like to have seen that person charged if they had had the evidence to bring beforea criminal court. None of us underestimates how important it is for the security of this country to bring such people to justice. With such examples in mind, on this occasion we are prepared to go that extra mile—for us it is a very hard extra mile—and not support these amendments.

Lord Thomas of Gresford: My Lords, I disagree with the noble Baroness, Lady Anelay, that the passing of these amendments would nullify Part 1. These Benches would have no objection to an order of this type being introduced in circumstances where a person had been convicted of a criminal offence of a like nature to that which the order is designed to prevent in future, but that is not the purpose of the SCPO that is proposed here.
	The Government had an idea some years agothat it would be rather a good thing to avoid the protections and guarantees of a fair trial contained in Article 6 of the European Convention, which they themselves made part of the law of this country. In order to do that, they say that these are to be civil orders requiring a civil standard of proof, and permitting the introduction of hearsay evidence in a way which would violate Article 6.1 protections in relation to a fair trial of a criminal offence. It is true that, when it considered the effect of an ASBO, the House of Lords determined that the court could not make an order of that nature unless the criminal standard of proof was applied. If orders are made under Part 1, I have not the slightest doubt that the first thing that will happen is that an application will be made to the court and, if necessary to the Court of Appeal and beyond, to make it absolutely clear that the criminal standard of proof of involvement in a serious crime is a necessary precondition of making an order of this sort.
	We seek to avoid the necessity of future litigation of this type, which can have only one result, and to put in the Bill the requirement that the involvement in serious crime must be proved beyond reasonable doubt. If it is not in the Bill, the courts will very quickly seek to put it there. So, far from removing Part 1, or its effect, as the noble Baroness, Lady Anelay, suggested, we would be in exactly the same situation in any event. Indeed, I imagine that isthe precise answer that the noble Baroness, Lady Scotland, will give us—that it is unnecessary to have this amendment because of the McCann decision and that when these orders are considered by the highest court of the country the criminal standard of proof will be required in any event. Why do we have to go through that process? I support the amendment and I hope that the Conservative Benches will supportit too.

Lord Burnett: My Lords, first, I thank the Minister for organising the meeting last Monday that was attended by me and a number of other colleagues in the House. It was an extremely useful opportunity to listen to what the chairman and chief executive ofthe Serious Organised Crime Agency had to say. I recognise also that in the later stages of the Billthe Government have moved considerably towards meeting the serious objections voiced in Committee. I talked then about the resources for that organisation. It is in its early inchoate stages and I would welcome hearing from the Minister exactly what resources the Government propose.
	On the amendment standing in my name and in the names of my noble friends Lord Dholakia and Lord Thomas, I look forward to hearing a compelling response from the Minister to the cogent points that have been made by my noble friend Lord Dholakia, the noble and learned Lord, Lord Lloyd, and my noble friend Lord Thomas of Gresford. They are difficult points and, if the Bill is to go through—it looks like it will go through without our amendments, given what the noble Baroness, Lady Anelay, has said—let us hope that it is not a busted flush. Perhaps we should hope that it will be a busted flush, but let us hear what the Minister has to say.

Baroness Carnegy of Lour: My Lords, my noble friend Lord Onslow castigated my noble friend on the Front Bench for the position she has taken on these amendments. It is a finely balanced, difficult issue. My noble friend Lord Onslow said that the measure would take away the right of British citizens to a fair trial. The British citizen also has the right to be protected from what we learn are the many threats building up in our society that can be very damaging to our people.
	It remains to be seen as to whether this measure will work, whether there will be miscarriages of justice, and whether we shall know that there have been miscarriages of justice. I do not know, but I understand the position of my noble friend on the Front Bench. I am glad that my party, which I support, is prepared to give this a go and to see whether we can stop some of these threats. I will support my noble friend with a fairly heavy heart, because we are eroding the protections that we have under the law, but there are times when we are forced to take measures such as this. On this occasion, I will go along with what my party wants.

Baroness Scotland of Asthal: My Lords, I thankthe noble Baroness, Lady Anelay, for the way she expressed her cautious support for these amendments. I endorse what she said about them. I concur with her about the situation in which we find ourselves. I say to the noble Baroness, Lady Carnegy of Lour, that she is right to emphasise the need to protect the individual and society from the pernicious impact of serious and organised crime. I hope that, from the way in which the Government have presented the Bill, the House accepts that we have not rushed to do this, buthave done it in a proportionate and balanced way. I thank noble Lords who not only participated in the meetings but also participated in Committee in order to fashion a way forward that would be acceptableto all.
	The noble Earl, Lord Onslow, must forgive me if I smile at him. He will know that it is a habit I have fallen into over the past 10 years. It is not because I think that the issues are funny, but because I cannot help but be affected by the vim with which the noble Earl presents his case. It in no way detracts from it.
	I want to reassure the noble Baroness, Lady Anelay. I agree with her that it is of critical importance that we do everything possible to catch, fairly prosecute, convict and apply the appropriate sentences to those who engage in this extremely serious type of offending. That will always be our first port of call. I also reassure her that we intend to target the use of these orders to interdict serious crime in the most effective manner.
	On the issues that arise in relation to the standard of proof, I say to the noble Lords, Lord Dholakia and Lord Thomas of Gresford, that I understand their anxiety. It is for that reason that when we debatedthis issue in Committee I referred on a number of occasions to the importance of the McCann judgment. The noble and learned Lord, Lord Lloyd, is right to identify the comments made by the noble and learned Lord, Lord Hope, and others in that judgment. He will know that in so doing they referred to the sliding scale and set out how, when dealing with matters of such importance as anti-social behaviour orders, the court should view the standard of proof. I do not intend to reiterate all the arguments that were made in Committee because they still hold true. I am very grateful for the fact that, in opening his remarks on this amendment, the noble Lord, Lord Dholakia, put the Government's position very clearly and fairly.
	Amendments Nos. 1 and 2 change from the civil standard to the criminal standard of beyond reasonable doubt the standard of proof to be discharged in relation to the first limb of the test in Clause 1. Introducing such a criminal concept would be inappropriate in the context of the civil order. The noble Lord, Lord Thomas of Gresford, is right to say that we see these as preventive orders, not punitive ones. Amendment No. 36A deletes Clause 33(2), which provides that the applicable standard of proof before the High Court is the civil standard. We have included this statement to provide clarity on the standard that is to be applied by the High Court. We discussed at some length the case of McCann and the impact that it will have on proceedings in relation to these orders. We believe, as the House of Lords made clear in the case of McCann, that the civil standardof proof is flexible and has a sliding scale from onthe balance of probabilities at the lowest to beyond reasonable doubt at the highest. In case anyone misunderstands, I believe that the House should be confident that McCann will apply to the first limb.
	I also thank the noble and learned Lord, Lord Lloyd, for accepting, as I do, that in relation to the second limb it would be impossible to apply the standard of "beyond reasonable doubt" because that is a matter of judgment. Both the first and second limbs need to be proven. If we have a civil standard, the court will be able to apply McCann in relation to the first limb but the balance of probabilities will be applied in relation to the second limb in the usual way. As I have said before, case law shows that the court is likely to require a high standard close to "beyond reasonable doubt" in relation to the first limb of the test for obtaining an order, and therefore we believe that the amendments are inappropriate and unnecessary.
	It may be helpful at this stage if I outline the procedure that I believe is likely to be adopted before these orders are made. I know that it is more usualto take such an approach in Committee but I shall explain why I think it might be helpful. Many questions have been asked about how the orders will come about, what evidence will be called in support and what procedural rules will apply. That confusion has caused a great deal of concern and contention, and a number of people have invited me to set out what the procedure is likely to look like. Therefore, with the leave of the House, in order to frame our subsequent discussions it may be helpful, unless anyone indicates that it is not, if I set that out now.
	The first step will be for one of the relevant applicant authorities listed in Clause 8 to decide whether to make an application for an order. They will make the decision on the basis of advice fromlaw enforcement, such as the police, Her Majesty's Revenue and Customs and the Serious Organised Crime Agency, and on the basis of their own experience of whether the case is suitable for an order.
	Guidance will be issued to the relevant applicant authorities to assist them in this work. Paragraph 4of Schedule 2 specifically provides that the Codefor Crown Prosecutors can include guidance on the general principles to be applied by Crown prosecutors in relation to serious crime prevention order proceedings. Paragraphs 9 and 18 of Schedule 2 make corresponding provision for the Director of Revenue and Customs Prosecutions and the Director of Public Prosecutions for Northern Ireland respectively. There is no corresponding provision in relation to the director of the Serious Fraud Office because he does not have a statutory power to issue guidance to his staff, but he will issue non-statutory guidance. Furthermore, the functions conferred on the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions and the director of the Serious Fraud Office must be expressly delegated to their staff. We discussed that in Committee. This will ensure that only those with suitable training and expertise will deal with serious crime preventionorder cases.
	Once the decision to make an application hasbeen reached, the relevant applicant authority will make an application to the High Court. This will be by way of an application notice under Part 23 of the Civil Procedure Rules. Those rules will apply toall applications for orders in the High Court. They contain extensive and detailed guidance for thecourt on the conduct of proceedings for court orders. The rules will apply to applications for seriouscrime prevention orders, as they apply to any other application for a court order. In particular, the over-riding objective will apply: the court must deal with all cases justly.
	As I have explained before, as an additional safeguard in relation to serious crime prevention orders, the applicant will be required to include information in the application notice about the possible impact of the order on third parties. This will help to ensure that the court has all the relevant information when making its decision and determining what is reasonable and proportionate.
	The application notice will be served on the respondent and a hearing date will be set. At the hearing, the applicant authority will present its case for the order being made and the respondent will be able to respond to that case. The applicant will need to provide the court with evidence to persuade the court that the test for making an order has been met and that the terms of the order are appropriate. It is hard to predict what evidence might be needed, but it is likely to include testimony from law enforcement officers, in the form of either oral evidence or a witness statement and documentary evidence, such as proof of any convictions that are relied on. In addition, Clause 9 of the Bill makes express provision for third parties to make representations to the court to ensure that their rights are taken into account.
	Having heard both sides of the case, and any third parties, the court will proceed to decide whether to make an order. The court is a public authority within the meaning of the Human Rights Act 1998,which means that it must act compatibly with the convention rights. So the concerns of the noble Lords, Lord Thomas of Gresford and Lord Dholakia, about the Human Rights Act can all be dealt with by the High Court at an appropriately high standard. Asa consequence, any order that it imposes must be compatible with the convention rights. An order could not include a requirement for house arrest, because such a measure would be incompatible with Article 5 of the European Convention on Human Rights. If a proposed obligation engages a person's rights under Articles 8, 10 or 11, the court would have to be satisfied that the interference was necessary and proportionate.
	If an order is made, Clause 10 of the Bill ensures that it will take effect only if the respondent was represented at the hearing or if he is served witha notice in person or by recorded delivery. The respondent may appeal to the Court of Appeal against the High Court's decision, as set out in Section 16 of the Supreme Court Act 1981 or, as the case may be, Section 35 of the Judicature (Northern Ireland) Act 1978. Clause 24 of the Bill also provides rights for third parties to appeal. Once any order has been made, an application for variation or discharge can be made by the subject of the order, the relevant applicant authority or a third party. That will ensure that the necessity of the order can be kept under review.
	I have focused on the process in the High Court because that is where we expect most orders to be dealt with. However, the same principles will apply when the Crown Court is asked to make an order. The only significant differences are, first, that the Crown Court will not consider whether the person has been involved in serious crime, because he will have been convicted of an offence, and, secondly, that special rules of court will need to be made, because the Civil Procedure Rules do not apply automatically in the Crown Court. It is that normal civil process, as set out in the Civil Procedure Rules, together with the enhanced safeguards that we have included, such as the provisions relating to third parties, which will ensure that the orders are reasonable, proportionate and used appropriately.
	I certainly hope that the noble Earl, Lord Onslow, will agree that that is all compatible with what we would like to see in our good British courts. It does not really give rise to alarm or concern that we shall go off on an illiberal frolic that would enable us to interfere improperly with the rights of our citizens.

Lord Mayhew of Twysden: My Lords, is the Minister's objection to these amendments procedural or substantive? I had the impression that it was procedural when she said that it would be inappropriate to have the criminal standard of proof because the purpose of making an order of this character, or of applying for one, was not punitive but preventive. If one is on the receiving end of such an order and one is told that one cannot go there, live here, or have dealings with so-and-so, it does not make much difference whether it is one or the other. If, on the other hand, the objection is substantive, how does that stand up to her concession to the noble and learned Lord, Lord Lloyd of Berwick, that, in any event, the courts will, in a case of this character, apply the civil standard of proof so toughly asto be virtually indistinguishable from the criminal standard? Is it one or the other?

Baroness Scotland of Asthal: My Lords, it is both. The whole point is that, to persuade the court to make this order, one has to persuade it of both limbs; they are conjoined. First, one has to satisfy the court to the appropriately high standard on limb 1; if the court is so satisfied, it has to turn to limb 2, which is an issue of judgment. The process through which the court will undertake that exercise will be part of the civil process. The noble and learned Lord, Lord Lloyd of Berwick, accepts—as, I understand, does the noble and learned Lord, Lord Mayhew—that one simply could not apply the standard of "beyond reasonable doubt" to the second limb. If one looks at the amendment simpliciter, one would have to have "beyond reasonable doubt" for the first limb and a balance of probabilities for the second.

Baroness Scotland of Asthal: My Lords, this is within the context of civil proceedings. I am repeating the arguments that I made in Committee and today. This is an appropriate way to allow the High Court to determine the standard. It is still a civil standard; the court can look at different elements and decide which standard in the civil palette it is most appropriate to apply. These are preventive, not punitive, orders. This is therefore the most appropriate response.
	For the reasons that I have given, the Bill provides an effective way of preventing serious crime, and the harm that it causes, while protecting the rights of individuals. However, that is not to say that we have not listened to noble Lords' concerns and how they have been expressed. The second limb of the test is a question of judgment. Consequently, there would be no standard of proof as such; it would be a matter of a court making a judgment on how to deal with it.
	The noble Lord, Lord Burnett, asked about cost. As a whole, the department has severe pressures on it, of course. In 2006-07, funding for SOCA was around £20 million, less than the provisional figures in the business plan. However, we believe that there are sufficient funds to enable SOCA to discharge its responsibilities with propriety.
	We have taken note of the careful scrutiny thatthe Bill has received from your Lordships' House, prompting us to bring forward a number of amendments. They will be discussed in their place, but it may assist noble Lords to know that Clause 5(7)—giving discretion to law enforcement officers to determine some partsof an order—is to be deleted and replaced with a much more tightly drafted provision. It may also assist the House to know that we propose to add a new clause to protect those who are subject to restrictions on the disclosure of information, such as a duty of confidence that would be breached by complying with an order.
	I must resist these amendments for the reasons that I have set out, but I hope that the House feels that I have been able to provide some reassurance on the process that will take place in making an order and how that will give effective protection to the rights of the subject of the order.

Baroness Scotland of Asthal: My Lords, it may be that because the noble and learned Lord, Lord Lloyd, was speaking the noble Baroness naturally assumed that we were dealing with intercept. We will be dealing with it later. These offences are restricted to serious crimes but do not include terrorism. The terrorism legislation is separate and apart from this. I know that the noble Baroness will, if the noble and learned Lord has his way, have an opportunity to assist the House with her views on intercept in due source.

Lord Thomas of Gresford: moved AmendmentNo. 5:
	Clause 2, page 2, line 26, after "has" insert "conducted himself in a way that was unreasonable in the circumstances and, by doing so, has"

Lord Thomas of Gresford: My Lords, we discussed these amendments at length in Committee. Your Lordships will recall that the Bill provides for a person to rely on a defence that he was acting reasonably in all the circumstances. The problem is that the Bill placesthe burden of proving that he acted reasonably on the defendant. In other words, it reverses the ordinary burden of proof that applies in the vast majority of criminal offences. All these amendments would do is put on the prosecuting authority the requirement to establish that a person was acting unreasonably before an order could be made.
	The matter that must be established is whetherthe actions in question were reasonable in the circumstances. That is not a test of whether the actions were reasonable in the defendant's mind. Because the words "in the circumstances" are used, it is clear that an inquiry is required into whether the actions were objectively reasonable; the defendant's state of mind is not determinative of that in any way.
	As we have found in many areas of the criminal law, objective reasonableness is a vague concept that is difficult to establish. Moreover, we are dealing not with a jury but with applications made to a single High Court judge. The problem is that it is the High Court judge's view of what is reasonable, rather than what the defendant considered at the time he performed the actions, that is likely to rule. We do not believe that it is fair to impose this burden on the defendant.
	I hope that I have the support of the noble Baroness, Lady Anelay, because she made the apposite comment in Committee that it was not possible to see,
	"any justification for applying the reverse burden of proof".—[Official Report, 7/3/07; col. 279.].
	We entirely agree with her and bring forward these amendments accordingly. I beg to move.

Baroness Scotland of Asthal: My Lords, the amendments would require the applicant authorities to prove something of which they can only ever have a limited knowledge or ability to adduce evidence. The Bill provides that, when the court is deciding whether a person has acted in a way that facilitated or was likely to facilitate a serious crime, it must ignore any actions that the proposed subject of an order can prove were "reasonable in the circumstances". An order cannot be imposed on the basis of such reasonable actions.
	To go back to my earlier comments on process, and as a result of our earlier discussion on this point, I would like to make clear what happens to the burden here. As I noted in relation to the first limb of the test in Clause 1, it is for the relevant applicant authorityto prove that a person has been involved in serious crime. The standard of proof will be the civil standard but, as I hope I have made clear, given the seriousness of the conduct alleged, the standard that the court will expect to be reached is likely to be very close to "beyond reasonable doubt".
	It is then for the potential subject of the order to assert in response, and then to prove, that his actions were reasonable and should not form part of the court's decision on whether his actions facilitated or were likely to facilitate a serious offence. The standard of proof here will also be the civil standard but—this is a good example of the flexibility to which I have referred previously—because the burden is on the respondent, we would expect the court to apply the lower standard of "on the balance of probabilities".
	That approach strikes an appropriate balance. The respondent will always be in a far better positionto know the full circumstances of his actions and whether or not they were reasonable. To expect the applicant authority to prove unreasonableness would, we respectfully suggest, be inappropriate.
	To sum up, I emphasise that the Bill already provides for the same end result as the amendments would. Only unreasonable behaviour can form the basis of the court's decision on whether a personhas facilitated or acted in a way likely to facilitate a serious offence. As a result, the amendments are unnecessary and, for the reasons I have set out, inappropriate. I therefore hope that the noble Lord will feel able to withdraw his amendment and resist any temptation to bring these amendments back on another occasion.

Lord Burnett: My Lords, I am anxious not to repeat too much of what has been said so compellingly by the noble Baroness, Lady Anelay. At present the Bill allows the court to decide that any involvement in a particular offence warrants a serious crime prevention order even if that offence has not been specified by Parliament as a serious offence in the list set out in Schedule 1. That will do damage to the principle of legal certainty; it will be impossible for a person to ascertain in advance what the likely legal consequences of their actions will be. There isa lack of clarity and certainty. A prosecutor may believe that a particular offence is serious and that involvement in it warrants a serious crime prevention order, even though the legislation does not specify that the courts should consider that offence to be serious. When that is taken together with the provision that the prosecutor has no legal obligation to prove that the person's actions were unreasonable, this casts the net far too wide. The result will be that many innocent individuals could have to incur the distress and cost of being brought before the court and required to produce a defence.
	In response to these concerns, the Governmentuse the now all too familiar argument that times change, legal flexibility is needed, and the courts can be trusted. Given the impact that a serious crime prevention order could have on a person's reputation, rights and freedoms, such arguments are not satisfactory. The proposal would deny members of the public the right to know when their behaviour might lead to them being subjected to a serious crime prevention order. Parliament should not abdicate its responsibility for making laws clear and intelligible, and it should not leave people in a legal limbo where they cannot predict the likely legal consequences of their actions.

The Earl of Onslow: My Lords, I read from the report of the Joint Committee on Human Rights:
	"The House of Lords Constitution Committee in its report on this Bill had grave concerns as to whether the Bill as currently drafted is compatible with the constitutional principle of the rule of law and legal certainty, because of the lack of clarity about both the circumstances in which SCPOs might be made and their ambit when they are made".
	We then say:
	"For the reasons we have summarised above, we have very similar concerns about whether the power to interfere with various human rights by imposing a SCPO is sufficiently defined in law to satisfy the requirement of legal certainty which is also a fundamental feature of human rights law, including the ECHR".
	Further on, the report says that,
	"the Bill should be amended ... to remove the power of the court in clause 2(2)(b) to treat an offence as if it were specified in the Schedule of offences to which the Act applies because the court considers it to be sufficiently serious".
	We must do that. I think that there is somethingin Alice in Wonderland about the mad Queen saying, "If what I say is right, it's right"—I cannot quite remember the exact quote, and if I had had timeto look it up I would relish repeating it to your Lordships.

Lord Thomas of Gresford: My Lords, I have not the slightest doubt that the procedures under the Bill will be held to be criminal procedures and that all the requirements under the Human Rights Act will have to be fulfilled. Will the Minister explain howClause 2(2)(b) can possibly be compatible with the requirement of certainty in a criminal cause or matter?

Baroness Scotland of Asthal: My Lords, we discussed these amendments in Committee and I do not want to tire the House by repeating everything that I said then. However, I appreciate why the noble Baroness, Lady Anelay, has tabled them again, and I hope that my earlier explanations of the practical process for dealing with these orders will have reassured her as to our intention.
	The noble Baroness asked about deputy High Court judges. I should declare myself both as a recorder and as being ticketed to sit as a deputy High Court judge. We have worked hard with the judiciary and the Judicial Studies Board throughout the process of implementing the legislation to try to assess the training requirements for ensuring that there is sufficient capacity in the High Court to deal with the limited number of orders that will be sought. The noble Baroness will know that deputies are used judiciously to meet need.
	The noble Baroness spoke about consistency. High Court judges will have regard to one another's decisions and to whether offences should be treated as being sufficiently serious as to fall within Schedule 1. There will also be opportunities for appeals. The Court of Appeal's decisions will be binding on the High Court and Crown Court judges. However, whether an offence that is not in Schedule 1 should attract an SCPO is likely to depend on the circumstances of a particular case. We do not intend to create an order that can be used against all offenders. Orders will target those who are engaged in serious criminal behaviour that causes real harm to people. That is why the noble Baroness was right to remind the House when we were talking about Amendment No. 1 that it is expected that about 30 of these orders will be made per year.
	The discretion on conviction of the High Court or the Crown Court to treat offences other than those that appear in Schedule 1 as serious offences is important. It is necessary to ensure that the courts can impose an order where it is appropriate and where the order will prevent harm to the public. We have sought to include in Schedule 1 a list that sets out the majority of offences in which we believe serious criminals engage. However—I know that the noble Lord, Lord Dear, will have had great experience of this—it is very difficult to constrain what serious criminals will choose to do from time to time. They constantly look to adapt their operations to avoid innovative approaches by law enforcement agencies when they become aware of them. Senior law enforcement figures have described this to me as"the criminal market". As soon as law enforcement agencies are able to make involvement in an area of the market too high risk, serious criminals do exactly what a good businessman would do and diversify. With that in mind, we think that it is not a good idea to restrict the ability of our senior judiciary to identify and deal with serious criminal behaviour reasonably and within the bounds of convention rights.
	The provision does not create uncertainty. A framework is provided by virtue of the way in which Clause 2(2) is structured. It provides clearly that it will be for the court to determine whether a serious offence has been committed and that, for it to doso, the offence must be specified, or fall within a description specified, in Part 1 of Schedule 1, or must be, as Clause 2(2)(b) states,
	"one which, in the particular circumstances of the case, the court considers to be sufficiently serious to be treated for the purposes of the application or matter as if it were so specified".
	This is not saying to the court, "You can go off ona frolic of your own". This is the framework, andthe court would have to justify why it came to the conclusion that the offence should, in the particular circumstances of the case, be so specified, bearing in mind the nature and the mischief that the order seeks to address.
	It would be inappropriate to include offences such as assault in Schedule 1, as we do not want these orders to be available against all forms of assault. However, when, for example, the assault is being used to extort money, as a part of a pattern of serious criminal behaviour, we should be able to use these orders.
	The schedule provides certainty as to the majority of the offences to which we intend these orders to apply. It also provides the guidance necessary for the courts in exercising their discretion; they can treat an offence as serious for the purposes of the orders only if they consider, in the circumstances of the case, that it is sufficiently serious to be treated as if it were specified in the schedule. The offences in the schedule provide the court with guidance as to what is "sufficiently serious".
	We believe that the approach of the schedule in providing a significant element of certainty and guidance, teamed with a limited discretion, which will be exercised by the senior judiciary, provides an appropriate and effective means of defining what constitutes a serious offence for the purposes of these orders. As a result, we resist these amendments. I hope that I have been able to say enough to satisfy noble Lords that the concern that they have, properly, about how the powers will be used is not actually based on sound evidence. We believe that the powers will be proportionate and appropriately targeted and honed by the court in a way that will enable us to see justice done both for the individual and for those upstanding members of the community who are badly affected by serious crime.

Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for her response but I am particularly grateful to all noble Lords who have expressed a concern similar to mine aboutClause 2(2)(b). My noble friend Lord Waddington emphasised the importance of certainty in the law and of people knowing the consequences of their actions under legislation that is passed. The noble Viscount, Lord Bledisloe, said that there should be either Schedule 1 or Clause 2(2)(b)—that one should have one or the other but not both. That is very much behind what the noble Lord, Lord Dear, was saying; it might be better to add offences to the schedule than to leave a wider discretion.
	The Minister responded by saying that we needthe flexibility—and flexibility is the mantra of any Government, of course. The example that she gave was assault, which is a clear example of an offence in which there can be a whole range of seriousness. The noble Lord, Lord Thomas of Gresford, pointed out that, under criminal procedure, we would not have to worry so much, because in sentencing one would consider the range of assault to judge how serious it was. But we are in civil procedure—and here we are stuck with Clause 2(2)(b). There are considerable concerns. I can see why the Minister wishes to keep that flexibility, but my noble and learned friend Lord Mayhew pointed out that this is really not a judicial function and Clause 2(2)(b) goes too far, and I want to consider further what he said.
	I am minded to consider further before Third Reading what appropriate measures I should take and whether I should bring the amendment back in a different form or bring it back at all. The killer blow in a sense was given by my noble friend Lord Onslow, who referred to the report from the Joint Committee on Human Rights. I have done a speed read of that report; it was not vastly long, but neither has been the time between its publication and our debates this afternoon. Today, at lunchtime, we have also had the publication—

Baroness Anelay of St Johns: My Lords, I do so gladly. Like the noble Viscount, I am a keen observer of the rules at Third Reading. I did not say that I would bring the measure back; I said that I would consider whether I should do so. As part of that consideration, I shall discuss with the Public Bill Office whether my reasons for bringing it back are proper. If I am told that they are not, I shall not bring it back. Even with last year's changes to the wording in the Companion, I understand that it would bein order to bring the measure back provided that recent changes had occurred that made further consideration appropriate. I was about to explain that those recent changes arose in the report of the Joint Committee on Human Rights. It is right that we should consider that properly. The noble Viscount shakes his head but I consider that the Joint Committee's report should be properly considered.
	I am also concerned about the report of the Delegated Powers and Regulatory Reform Committee, which did an amazing job turning round between Tuesday morning and lunchtime today a report on other government amendments to Part 2, which at first might not look too much of a problem but which may pose difficulties. If information comes to light two hours before one comes into the Chamber, our procedure gives us the opportunityto consider whether we should bring back an amendment at Third Reading, which is why I do not wish to press an amendment today that I have not had the opportunity to consider fully on Report. That does not mean that I shall bring it back, but I shall do so only if it is permitted by the rules of the House, none of which I have ever either broken or sought to break. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.
	[Amendments Nos. 8 to 12 not moved.]
	Clause 3 [Involvement in serious crime: Northern Ireland orders]:
	[Amendments Nos. 13 to 20 not moved.]

Lord Lloyd of Berwick: My Lords, this amendment was also considered at considerable length in Committee. At the end of her reply the Minister, with her usual courtesy, offered us the choice of what she called either her short reply or her long reply. The record shows that I was in favour of the short reply, but the Minister chose otherwise,no doubt because of the strong support for the amendment from the noble Lord, Lord Dholakia, on the Liberal Democrat Benches, the noble Lord, Lord Henley, on the Conservative Benches and my noble friend Lord Dear on the Cross Benches.
	I am glad that the noble Baroness chose as she did because it means that we know the full extent of the government case for not admitting intercept evidence in criminal prosecutions—something which, as I have said so often in the past, is permissible in every other country of which I am aware. It simply does not make sense that we alone should exclude this evidence.
	Towards the end of her reply the noble Baroness said that if she could find a way to admit intercept evidence safely, it would be,
	"a consummation devoutly to be wished".
	In other words—I do not aspire to her Shakespearean quotation—it would serve a useful purpose. It would enable prosecutions to be brought in at least some cases of serious crime where they cannot be brought at present. I do not think that anybody now suggests otherwise.
	So the desire is there on the part of the Government. Why, then, do they not do it? I suggest that the clue is to be found in a sentence or two of the noble Baroness's reply. At the very end of her reply, she said:
	"Neither we nor anyone else have found a way of enabling us to use the material safely. If we could, we would".
	A little later she added:
	"I assure the noble and learned Lord that, if we can find a way to do as he proposes, he will be the first to hear".—[Official Report, 7/3/07; col. 313]
	She said that neither we nor anyone else had found a way of admitting such evidence safely, but I found that very hard to reconcile with our experience gained from other countries.
	In Committee, I referred to the report recently published by the independent organisation JUSTICE, Intercept Evidence: Lifting the Ban. Starting at paragraph 115, it set out the current experience of five other common law countries around the world where intercept evidence is used regularly in cases of serious crime. Those countries are Australia, Canada, New Zealand, South Africa and the United States. Australia is a particularly relevant case in point, because the Minister has been kind enough to write to me since Committee to correct an impression that may have been given inadvertently that in Australia intercept evidence is used hardly at all. That is not the case. In her letter to me of 23 April, she pointed out that the most recent figures, to June 2005, showed that in Australia intercept evidence has been adduced in 2,363 prosecutions, of which 1,533 have resulted in convictions. She kindly attached the table explaining how those totals were arrived at.
	In the light of those figures from Australia alone—and no doubt there are similar figures fromall the other countries referred to in the JUSTICE report—the Minister has to answer this simple question. If Australia has found a way of admitting intercept evidence safely, why cannot we find such a way ourselves? The Australian figures are also useful, indeed critical, for another purpose, because they bear out the experience of our Director of Public Prosecutions, Sir Ken Macdonald. A year or so ago, he visited three countries—Australia, Canada and the United States—to find out how they dealt with intercept evidence. He found it being used everywhere he went. It was being used safely everywhere, and he found disbelief everywhere that we could do without it in our country.
	Sir Ken Macdonald recently gave that evidence at a hearing of the Joint Committee on Human Rights and made an extremely powerful case for admitting such evidence now. I can say that that case was powerful, because I heard it myself. I suggest to the House that we should take his advice very seriously, especially as it confirms the advice of his predecessor, Sir David Calvert-Smith—now Mr Justice Calvert-Smith. They are not the only people to have expressed such a view. In Committee, I listed a number of others who had done so. It would be tiresome to repeat that list now. But many other people who are in a good position to judge say that the time has now come for intercept evidence to be admitted.
	Despite all of that experience world-wide, and despite the views expressed by so many people who are qualified to express views on this matter, I accept that some people say that it cannot be done safely, that we risk too much and that, sooner or later, the secret processes that we are so anxious to protect will come out in court. No doubt, some noble Lords will express that view this afternoon, although there is a notable absentee—but she may come later.
	To those who still believe that admitting the evidence cannot be done safely, I say two things. First, they should look elsewhere. It has been and is being done safely in all the countries that I have mentioned, not to mention all the European countries—France, Germany, Italy, Holland and so on. Secondly, they underestimate the power of the court under the public interest immunity procedure, which is now clearly set out in black and white in Part 25 of the Criminal Procedure Rules 2005, and appendix 1 of Blackstone. I assure the House that there is no prospect of any judge of the High Court ordering the disclosure of material that would damage the public interest by revealing sensitive matters that ought not to be revealed. If any judge did so order, there would be an immediate appeal to the Court of Appeal.
	It comes to this: the Minister says that she would admit the evidence if a way could be found of doing so safely—that the desire is there. I hope that I have demonstrated to the House that a way has been found of doing so safely in all the other countries to which our system is most similar, and many others to which I have not referred. I am left with the thought that what is lacking is not the ability to make the evidence admissible, but the political will to make a decision after all these years. I hope that this House willnow make that decision for the Government. I begto move.

Viscount Bledisloe: My Lords, the objections raised by the noble Baroness, Lady Park, are remarkable if one looks at the schedule that goes with the proposed new clause. Under that schedule, an application to introduce intercept evidence can be made only bythe prosecution. It seems a little unlikely that the prosecution will try to introduce evidence that the security services say must not be introduced, but let us assume that the prosecution does so. The Secretary of State would have to apply to the court for the evidence to be withheld. Obviously, the successorof the noble Baroness, Lady Park, would, in certain suitable circumstances, ensure that such an application was made. Will the court really overrule the Secretary of State when he says that the evidence, if admitted, would damage our security services? With the greatest respect to the noble Baroness and the noble Lord, Lord Armstrong, their objections are fanciful. I cannot understand, and the noble Baroness has given no example, how this procedure is all right in other countries, particularly America, but not here. She can hardly say that we have greater trouble with al-Qaeda than the Americans do. If the Americans, Australians, Canadians and others can manage, it is totally possible for us to do so.
	In spite of the powerful character of the objectors, therefore, I hope that the House will recognise that they have not advanced any argument other than to say, "It never happened in my day and it ought not to happen now". Everyone accepts that the amendment would solve a lot of the problems with the Bill. Most of the justification for making these strange orders is, "We can prove it but we cannot prove it in court". If we allow the evidence to be produced in court, that problem will not arise.

Lord Boyd of Duncansby: My Lords, until October last year I was closer to this argument and debate in government than I am now. As the noble and learned Lord, Lord Lloyd of Berwick, will know, I have not been persuaded of the arguments in favour of his amendment. We went through this ground at length during the Second Reading of his Private Member's Bill, so I will not detain the House by going into detail. I wish to make three points.
	First, my understanding is that, in comparison with other countries, the relationship between intelligence agencies and law enforcement agencies is much closer in the United Kingdom than it is in virtually all the other countries that have been discussed. As the noble Baroness, Lady Park, said,we are not talking about conventional telephone tapping but about techniques that are far more sophisticated in the intercept of all kinds of electronic communications. As I understand it, that close proximity gives the character to the present debate, in particular about whether it is right to admit intercept evidence.
	My second point is that the use of intercept evidence is court will produce a high volume of material in many cases because intercepts are often left to run for considerable periods of time. That will place a heavy burden on intelligence agencies, law enforcement and the prosecution because the material will have to be gone through, sometimes in minute detail, in order to ensure that material that properly ought to be kept secret is blacked out or markedin some way so that that can be done. If it is an intelligence agency tap, intelligence agents will have to do that, and I would prefer them to be used for intelligence, not as disclosure officers.
	My third point is that, in moving his amendment, the noble and learned Lord concluded that the issue is a lack of political will. I assure him and the House that, from my observation of this matter, that is not the case. A considerable amount of work has gone in at high levels in government and in the associated agencies to try to produce a model that will meetthe proper concerns of the intelligence and law enforcement agencies. All the models that have been produced have had an aspect which has meant that they could not go ahead. I can say with complete candour that it is not a lack of political will. Many of us would love to see the result that the noble and learned Lord wishes, but the report from the commissioner, to which I have no doubt the Minister will refer in her reply, made clear that there are serious concerns about whether this is the right way to go. I hope that this matter will not be pressed.

Lord Henley: My Lords, in moving the amendment, the noble and learned Lord, Lord Lloyd of Berwick, referred to our debates in Committee on this subject. He failed to mention that this is the fourth time that we have covered this subject in the past two months because it featured very largely in the Second Reading debate and the Committee on this Bill and was the subject of the noble and learned Lord's Bill that we debated the other day. We are now debating this matter again, and I understand thatthe Minister has debated it on a number of earlier occasions. She is now looking at me with pursed lips, if I can put it in that manner, and I offer her my commiserations for having to debate it yet again. However, after all this time, it may be that she will come to see the merits of the arguments in the noble and learned Lord's case and of the arguments put forward by speakers from around the House. On the reaction from the Government, I hope that this debate might prove to be the exception. On this occasion, perhaps I may suggest a shorter response from the Minister, as requested by the noble and learned Lord. The noble Baroness could simply say that she accepts all the arguments that have been put forward.
	The noble and learned Lord has put his arguments forward very well. It is not for me to reiterate all that he and others have said. I underline only one point—a point made by the noble and learned Lord and others—that in a great many other countries, outside the United Kingdom, intercept evidence has been used in the past. I refer to a trip made by my right honourable friend David Davis to North America only last month when he saw that in action. As the noble Baroness will be aware, outside the United Kingdom intercept evidence has been used to convict al-Qaeda cells in the United States following 9/11; it has been used to convict various serious criminals—the so-called five godfathers of New York crime—and it has been used before the International Criminal Tribunal for the former Yugoslavia at the Hague to convict war criminals.
	The Minister noted various omissions of intercept evidence in her response to the noble and learned Lord's Private Member's Bill, which we debated two or three Fridays ago. I direct her to those examples and I reiterate the request made at the time for the figures on using intercept evidence in serious drugs cases. I expect she will find that the issue is not as cut and dried as she then seemed to think.
	On that occasion, the Minister mentioned safeguards and I would like to direct her to the evidence gathered by my right honourable friend David Davis in America last month. In America,they make essential use of classified information procedures. The safeguards are solid and the benefits are overwhelming, yet still, unfortunately, they are over there and not over here. In literally thousands of organised crime cases, intercept evidence has been the key evidence on which the verdict has turned. Often, if intercept evidence is permitted, the accused accepts a plea bargain. It is also vital in enterprise cases. Where big organised crime is involved, intercept evidence can be used in plea bargains to get minor players to give evidence against the bigger fish.
	The noble Baroness may be interested to hear a little about the safeguards surrounding that procedure. As I understand it, first, a judge must authorise the use of intercept, which would be in camera, and the defence would have an opportunity to challenge that if it wished. Further, judges and defence lawyers involved in the procedure must have particular clearance to deal with intercept material. In support of those measures, evidence may be edited or summarised to protect the sources and to allow the defence to challenge it in open court.
	Again in summary, to repeat what has been said by a great many noble Lords in this debate, the United Kingdom is the only country in the common law world to refuse the admittance in court of evidence gathered on home soil. Furthermore, as I understand it, evidence gathered in the United Kingdom can be admitted for use in the United States. Therefore, on this occasion, after so many earlier opportunities, we hope that the noble Baroness will consider this and,in the light of evidence in the United States of the proven effectiveness of their safeguards, be tempted to offer, dare I say, the short and sweet response to the amendment of the noble and learned Lord.

Baroness Scotland of Asthal: My Lords, I can certainly make this much short and sweet: I accept without qualification the arguments of the noble Baroness, Lady Park, the noble Lord, Lord Armstrong, and my noble and learned friend Lord Boyd. That could perhaps suffice, on the basis that this is the seventh time the noble and learned Lord, Lord Lloyd, has made his intercept-as-evidence proposals in the past two years, and the third time during the course of the Bill.
	However, it right for us to bear in mind what has been said so eloquently by my noble and learned friend Lord Boyd in support of the comments of the noble Baroness, Lady Park, and the noble Lord, Lord Armstrong. It has been suggested that the noble Baroness and the noble Lord are perhaps no longer in touch, or up to speed, with the current position. Of course, the noble Lord, Lord Dear, also has real experience in this field, but that cannot quite be said about my noble and learned friend Lord Boyd or fairly said about those who now put forward this argument on the Government's behalf.
	Given the history of these debates, I can do no better than refer the House to the comprehensive and detailed response I gave on the Government's behalf on 7 March, Hansard cols. 308-314, and again on16 March, Hansard cols. 990-995. We concluded then—as on every occasion we have considered and responded to the proposals in detail—that we are unable to utilise the material as the noble and learned Lord has sought. The proposals are not only seriously flawed but actually dangerous because, as I have explained, they provide none of the safeguards that we and others have recognised as crucial and have been working so hard to develop. Our position reflects that of the key stakeholders in the debate, which is measured and sensible. Until we find a method of delivering change in a way which protects our ability to fight terrorism and serious crime effectively, the Government cannot support a change in the law. Again, therefore, we oppose the proposals.
	My response to the noble and learned Lord, Lord Lloyd of Berwick, in our previous debate was tothe assertion that intercept as evidence would be particularly effective against terrorism. I gave figures from the Australian Telecommunications Interception Act 1979. The most recent, for the year ending30 June 2005, showed that intercept was not adduced in any terrorist prosecution. As the noble and learned Lord rightly said, I then went on to deal with these other figures.

Baroness Scotland of Asthal: My Lords, I do not have the table from which those figures were adduced, but I can certainly find them. The important thing is that this goes to the noble and learned Lord's point that this sort of evidence is useful and should be used. He suggested that Australia was an example of where intercept evidence had been used to that purpose. Therefore, I thought it was important for us to have the facts about the accuracy of that assertion. We now do so.
	The Australian figures of course were of interest. But we know that overseas jurisdictions have, asthe noble Baroness, Lady Park, indicated, a different structure from our own. Their use of intercept evidence, and the way in which they protect sensitive capabilities, differs. They wall off the more sophisticated work of their intelligence agencies, which is not produced in evidence, from the more straightforward interception work conducted by their law enforcement. We could do that, too. We have not done so because in the United Kingdom our intelligence agencies work hand in hand with law enforcement and the access to sophisticated capabilities this promotes has served us very well. Once you dismantle the protections on intercept material, you dismantle the protections for all intercept material. That requires replacement safeguards to be put in place, and that is what we are working really hard to try to develop.
	I take up the issued raised by the noble Viscount, Lord Bledisloe. It has been said that if only the prosecution can decide whether it can in each case provide intercept evidence, surely that will suffice. That song has been echoed by the noble Lord, Thomas of Gresford. It is not likely to be ECHR compatible because there has to be a right to a fair trial. That—I hope the noble and learned Lord would think—would undermine the efficacy of that as a way forward.
	I had wanted to keep my speech short because these issues have been trailed so often. However, it is only right to say that in many of our previous debates on these proposals I have explained why intercept evidence would not be effective against terrorist targets; why it would not obviate the need for control orders; why it is very different from eavesdropping evidence; why any gains against serious crimewould be modest and time limited; why our countryis different from others which do not use intercept evidence; and why technology changes, in communications and the ability to intercept, is so crucial.
	I have also set out why the Government's view is and continues to be that we have to work on the issue. I do not propose to go through all the fine details. I know that the noble and learned Lord has been invited to come and see the work we are doing. I really want to underline what was said by my noble and learned friend Lord Boyd. This is not because ofany lack of will. Considerable efforts are being undertaken on a continuous basis to address the issue, and we are determined to pursue the matter.
	I now come to a stage where I am almost going to beg the noble and learned Lord, Lord Lloyd, to accept our bone fides on this issue. This is not implacable hostility. This is not obdurate or obstinate opposition for opposition's sake. There is no resistance to doing this—and I reassure the noble Lord, Lord Henley of that—because we are antipathetic to this move as a matter of principle. That could not be further from the case. But I have to tell the House that this Government will not move to introduce information on intercept which is likelyto cause damage to the security of our nation. We will not move.
	Unless and until we determine a way in which that can be safely used, from this Dispatch Box the House will receive the same response. If, through ingenuity and hard work, we are able to resolve the problem, I will with joy return to the Dispatch Box to explore how it has been done. Until that stage, I invite the noble and learned Lord to withdraw his amendment and to be content that he has ensured that our efforts will continue at a heightened level.

On Question, Whether the said amendment(No. 21) shall be agreed to?
	*Their Lordships divided: Contents, 182; Not-Contents, 121.

Baroness Anelay of St Johns: My Lords, I shall speak also to Amendment No. 24A. I wish to make it clear that I have brought these amendments back in order to give the Minister the opportunity to carryout a commitment she gave in Committee. These amendments probe the relevance of a person's mental state to the ability of a court to impose a serious crime prevention order on them. They ask the Government to define what is meant by the term,
	"any other aspect of his mental state",
	which is not clear in the Explanatory Notes.
	Clause 4 appears to treat those with mental incapacity or mental ill-health inappropriately. It supplements Clauses 2 and 3 and contains further provisions for a situation where a third party is accused of facilitating the commission of a serious crime by another person, in some circumstanceseven where that offence is not actually committed. Subsections (2) and (3) require the court to ignore the intentions and other aspects of a respondent's mental state at the time of the act in question. The court must ignore the person's mental state.
	When I moved these amendments in Committee, the Minister stated, at col. 763 on 14 March, that the reference to mental state is a reference to intention, not to mental ill-health or incapacity—that one does not need to intend the consequence of that which is sought. The Minister said that she would be happy to write to me, with copies of the letter to Members of the Committee, setting out the examples of how the provision should be implemented. Despite the welcome confetti of Home Office letters and e-mails in the past 24 hours, I have not yet received a letter referring to this specific point. Therefore, I left this amendment on the Marshalled List and invite the Minister to give further clarification. I beg to move.

Baroness Scotland of Asthal: My Lords, I realise that we did not go into the detail of this amendment when we discussed this clause in Committee, for which I apologise. I also apologise that the issue seems to have slipped through the net among all the other issues that the noble Baroness and I have tried to address. Perhaps I may take the opportunity to explain why such an amendment would be unwelcome.
	The clause is drafted with separate references to the intentions of the subject and,
	"any other aspect of his mental state".
	For the reasons I set out in some detail in Committee, we do not want the applicant authorities for these orders to have to prove that the proposed subject has a particular mental state such as intention when deciding whether they have acted in a way that has facilitated or was likely to facilitate serious crime. Clause 1 expressly sets out that these orders can be granted only where they are preventative of serious crime. The terms of the order must be reasonable and proportionate, and in this context there will be instances when the need to prevent considerable harm will mean that an order is appropriate where it would be almost impossible to show an element of intention or other mental state such as recklessness.
	The effect of the amendments would be to remove the reference to other aspects of his mental state. If the court is to ignore the proposed subject's intentions at the time, it would seem odd that it should be ableto take into account those elements of his mentalstate which would fall outside "intention" such as recklessness or knowledge. Further, while the court will ignore the mental state of the proposed subject, it will also ignore any action which the proposed subject can show was reasonable. As I outlined earlier when discussing the process for the making of these orders, the court will make an order only where the applicant authority has proved that the proposed subject has been involved in serious crime, where the applicant can convince the High Court that the order is necessary to prevent, restrict or disrupt further such involvement, and where the terms of the order are reasonable and proportionate. Within this context, we do not think it would be appropriate for the court to be able to take into account, for example, whether the proposed subject was reckless as to their involvement in serious crime. We must, therefore, resist the amendments. However, I am grateful to the noble Baroness for her patience because it has given me an opportunity to explain why her concern here is not merited and why her amendments would undermine what I know both she and I seek to achieve.

Lord Henley: My Lords, I shall speak also to Amendments Nos. 31 to 36, 75, 123 to 125, 127 and 128, 139 and 140. These simple amendments are designed to replace the references to the Secretary of State throughout the Bill with references to the Lord Chancellor.
	The Home Secretary has announced his intention to hive off a substantial part of the Home Office and transfer it to the Department for Constitutional Affairs by 8 May this year—by which time it is not likely that this Bill will still be in this House and may not have started in another place—thereby creating a Ministry of Justice. The provisions of the Bill seemto fall within those that we understand will be transferred to the said new ministry. I would be grateful if the Minister could clarify whether I am right. If it is the case, surely the Minister with responsibility will be the figure known as the Lord Chancellor which, we all remember, the Prime Minister tried to abolish by mere executive fiat. Given that, he should be so named in the Bill. I beg to move.

Baroness Scotland of Asthal: My Lords, these amendments seek to change references made to the Secretary of State to the Lord Chancellor. I should say to the noble Lord that we do not think that is either necessary or appropriate. The amendments really relate to the power to make changes in Part 1 of Schedule 5, which lists the reference to the common law offence of inciting the commission of another offence. As my right honourable friends the Prime Minister and the Home Secretary have made clear, the focus of the Home Office will be very much on public protection and the reduction of crime. These orders will play an important role in that by giving law enforcement a flexible new tool with which to prevent harm being caused to the public by serious criminals. As a result, the order-making powers in relation to the orders will be exercised by the Home Secretary as the Secretary of State for the Home Department.
	During the extensive debates on the Constitutional Reform Bill, this House considered carefully which functions it thought should fall to the Lord Chancellor. Those functions relate to the maintenance of the rule of law and the independence of the judiciary, relations with the judiciary, judicial appointments and discipline, and the support of the judiciary in the execution of their duties. Those are all very different areas fromthe matters set out in relation to the orders or in relation to Schedule 5, and we suggest that they do not belong together.
	I turn to Amendment No. 75. The appropriate person to make the order in the future will be the Secretary of State who is responsible for Part 2. It may be that this is for a future Secretary of State for justice, or whatever title he or she may carry, but that would depend on a future transfer of functions. As things stand, the matter is clearly for the Home Secretary, and even if it was transferred to the person who also happens to hold the office of Lord Chancellor, it remains a function which does not sit with the very clearly defined list of responsibilities belonging to that post. As a result, the reference to "Secretary of State" is clearly to be preferred, and so we invite noble Lords not to insist on their amendments.
	There has been no slippage in the timetable, which still stands.

Baroness Scotland of Asthal: No, my Lords.The noble Lord will know that at the moment the current Secretary of State for the Department for Constitutional Affairs has two titles. One is in relation to the Lord Chancellor, whose role, which I have described in answer to the noble Lord's amendment, has been clearly defined with regard to the judiciary, the rule of law and so on. Those functions currently sit alongside the Secretary of State's other functions, but he has a two-hatted role. The roles that will be discharged by the Secretary of State will not fit within the Lord Chancellor's role because that role has been clearly defined. These provisions sit outwith that, but within the proper ambit of what will be discharged by a Secretary of State either for the Home Department or for the new Ministry of Justice.

Baroness Anelay of St Johns: moved Amendment No. 26:
	Schedule 1, page 46, line 25, at end insert—
	"Robbery using an offensive weapon or firearm
	An offence under section 8(1) of the Theft Act 1968 (c. 60) where it is alleged that, at some time during the commission of the offence, the defendant had in his possession a weapon specified by the Secretary of State under section 141(2) of the Criminal Justice Act 1988 (c. 33), or a firearm or imitation firearm (as defined by section 57 of the Firearms Act 1968(c. 27))."

Lord Crickhowell: My Lords, I put my name to these amendments for two reasons. First, there is understandable wide public concern about the remarkable growth of the kind of crime covered by these amendments. We have had far too many cases recently, not least in London, of people murdered in the course of crime. It seems odd, when we have a schedule listing serious crime, that crimes which the public probably think are about as serious as anyone can contemplate are not included in the list.
	I commented in Committee on the provisions in the schedule to deal with environmental crimes. There was a flurry of contributions about the importance of dealing with prohibited implements for fishing and such matters. As a former chairman of the National Rivers Authority, I had the responsibility for eight years for seeing that that kind of thing was prevented and that if people attempted it, they were prosecuted. Similar, with some success, we set about preventing the harmful deposit of waste and so on. We never found it necessary to contemplate the kind of provisions contained in the Bill, yet they are in this schedule, as are a number of other matters that no doubt in their way are crimes we should prevent, such as "illicit recording", but which do not seem to be quite on the level of robbery with knives or guns that is likely to lead to death. If the Government are not going to provide for that kind of offence themselves, we need to have some fairly compelling reasons for including some matters in the schedule that do not appear to be of quite such a serious nature while omitting something that the public might think should be very high up the list of matters covered.

Baroness Anelay of St Johns: My Lords, I amvery grateful to my noble friend Lord Crickhowellfor his support. I am grateful also to the Ministerfor his strong commitment to seek the advice of parliamentary counsel to do better than I ever could. I beg leave to withdraw the amendment and look forward to Third Reading.

Lord Bassam of Brighton: moved AmendmentNo. 28:
	Clause 5, page 6, line 2, leave out from "include" to end of line 3 and insert "—
	(a) a requirement on a person to answer questions, or provide information, specified or described in an order—(i) at a time, within a period or at a frequency;(ii) at a place;(iii) in a form and manner; and(iv) to a law enforcement officer or description of law enforcement officer;notified to the person by a law enforcement officer specified or described in the order;(b) a requirement on a person to produce documents specified or described in an order—(i) at a time, within a period or at a frequency;(ii) at a place;(iii) in a manner; and(iv) to a law enforcement officer or description of law enforcement officer;notified to the person by a law enforcement officer specified or described in the order."

Lord Bassam of Brighton: My Lords, I know that concerns were expressed at Second Reading and in Committee about the breadth of the discretion in the current drafting of Clause 5(7). Our primary aim is to provide law enforcement agencies with an effective tool through these orders, but we are more than willing to listen to suggestions for improving them which do not compromise that aim.
	The noble Baroness, Lady Anelay, suggested in her amendments that to narrow the discretion for law enforcement agencies to specify how certain provisions of an order are to be complied with would be highly desirable. We agreed with the principle behind her amendment and have worked with parliamentary counsel to draft a provision which would give effectto it. I therefore thank her for not moving her amendments in that context.
	Amendment No. 28 does precisely what the noble Baroness sought, and I hope that it also provides further certainty and clarity about exactly what we intend. The amendment replaces Clause 5(5) so that it will be possible to require the subject of an order to answer questions, provide information or produce documents, with the following details specified by law enforcement agencies: the timing of such provision, production or answering; the location at which this should be undertaken; the form or manner in which it should be undertaken; and in whose company it should be undertaken. Amendment No. 29 will delete Clause 5(7) as it will no longer be necessary inthose circumstances. The discretion proposed in Amendment No. 28 is important as it provides for the practicalities of providing such material to law enforcement officers.
	I thank the noble Baroness for her work on this matter. I think that we have reached a position with which we are jointly happy. I thank her again for not moving her amendments earlier. I beg to move.

Baroness Anelay of St Johns: My Lords, I am grateful to the Minister for moving his amendments, which I support. He referred to the fact that I did not move Amendments Nos. 3 and 4. I made it clear to the Bill team earlier that it would be inappropriate to do so, not just because the government amendments are superior to mine, but also because, had the Government's amendments had been grouped with mine, the Government would have been prohibited by procedure from introducing amendments, answering any questions that noble Lords might have had and then summing up. They would have had only one bite of the cherry, so it was right that the House should have had the opportunity to question them if need be.
	It was right that Clause 5(7) should be removed. My noble and learned friend Lord Mayhew of Twysden spoke eloquently on that matter in Committee. The discretion left to law officers in the Bill as it stood before amendment was too wide. On the other hand, I recognise the importance of flexibility, as there is in any event, when an order is made by a court. There should be an opportunity later to provide the fine detail of what somebody should do. The Government's amendment appropriately sets out the kind of activity or prohibition that a law enforcement officer should later impose. It provides the court with the power and authority to set out the range of prohibitions that should be imposed. I support the amendments.

Lord Bassam of Brighton: moved AmendmentNo. 29:
	Clause 5, page 6, line 9, leave out subsection (7)
	On Question, amendment agreed to.
	Clause 7 [Other exceptions]:

Baroness Scotland of Asthal: My Lords, I, too, have great sympathy with the intention behind the noble Baroness's amendment. It is vital that those who have severe mental disorders are given the necessary and appropriate treatments for their illnesses rather than simply treated in the same way as others when they come into contact with the criminal justice system. However, I hope that I will able to explain why I am confident that the intention is met in the way in which the courts will consider the granting of an order without making provision for it in the Bill.
	The noble Baroness will know that the clause provides the Secretary of State with a power to make an order that certain persons as specified in an order cannot have an order imposed on them. The reason for this is that the orders apply to organisations, including bodies corporate, partnerships and other unincorporated associations, as well as to individuals. It is not possible to say categorically that there are not, or will not be created, types of body to which it would be wrong or inappropriate to give an order.
	From the evidence that we have, the courts will make judgments on whether the proposed subjectwas in a fit enough mental condition to be made subject to an order. If a person was severely mentally incapacitated such that he could not conduct his affairs it is very hard to see how any order could be justified. That responds to the concern expressed by the noble Baroness, Lady Carnegy of Lour, about those who either lack capacity or have diminished capacity.
	For this reason, we believe that the amendment is unnecessary and resist it. However, I assure the noble Baroness that we went back to test out whether our confidence that this was the right way and would work was correct—and we believe that it will. That is why there is no amendment from the Government speaking to the issue.

Lord Thomas of Gresford: moved AmendmentNo. 37:
	Clause 33, page 22, line 19, at end insert—
	"(3) Notwithstanding this, the rules on admissibility of evidence to be observed in such proceedings shall be the same as those observed in trials on indictment; and no person shall be required in such proceedings to answer any question or to produce any document which he could not be required to answer or produce in similar proceedings in a trial on indictment."

Lord Thomas of Gresford: My Lords, I referred earlier to the fair trial provisions, which in my view willbe held to apply to proceedings of this nature. I mentioned two matters: the standard of proof and the admissibility of hearsay evidence. I start by saying that in the case of McCann the House of Lords, while holding that the civil standard of proof for ASBOs should be virtually the same as that in criminal proceedings, nevertheless permitted the use of hearsay evidence in obtaining anti-social behaviour orders. However, we are not dealing with those orders here but with serious crime, and very serious crimeas set out in the schedule that we discussed amoment ago.
	The two amendments propose that in the applications that will be made by prosecutors for serious crime orders, while the standard of proof should be high, in addition to that the rules as to admissibility of evidence to be observed in such proceedings shall be the same as those observed in trial on indictment. That same provision would apply not only to proceedings in the High Court that start without a criminal conviction but also to proceedings in the Crown Court when the application is made for an order following a conviction. In both instances, we submit that the proper way to prove involvement in serious crime is by proper evidence and not by hearsay evidence, as proposed in the Bill.
	The Prime Minister said in a speech to the Labour Party conference some years ago that the hearsay rule is an outdated relic of Dickens' England. That is a very surprising remark coming from that source; it is not a relic but a living principle applied in every criminal court in this country. I beg to move.

Baroness Scotland of Asthal: My Lords, we have already discussed in some detail the appropriate standard of proof for the orders and I hope that I have set out with a degree of clarity how the process of how the orders are made will operate. What I said at that point will provide some context for the discussions in relation to these amendments.
	Amendments Nos. 37 and 38 would change the rules on admissibility of evidence in proceedings relating to an order from those applicable in civil proceedings to those applicable in relation to trial on indictment. What the noble Lord says is right in relation to the difference in the nature of evidence that could be used. They also provide that in proceedings for an order a person cannot be required to answer any question or produce any document that he could not be required to answer or produce at such a trial.
	The court already has a comprehensive power to manage the cases and the evidence before it and will disregard anything that it considers is inappropriate to be taken into account. These are civil orders and we believe it is appropriate, therefore, that the rules of evidence which apply are the usual civil rules, rather than creating an unusual hybrid approach solelyfor these orders. For these reasons we resist the amendment.
	There are safeguards inherent in the process that I have outlined. Specific safeguards are contained in the rules in the High Court, as the noble Lord will know. The proceedings before the High Court will be civil proceedings and all the normal rules of evidence will apply. For example, Clause 34(3)(a) makes itclear that the Crown Court will not be limited to considering evidence that would have been admissible during the criminal proceedings at which the respondent was convicted. This means that hearsay evidence will in principle be admissible during an application for a serious crime prevention order. However, adducing such evidence will be accompanied by the usual safeguards set out in the Civil Evidence Act 1995. These safeguards include the need to give notice in certain circumstances of the intention to adduce hearsay evidence; the possibility of calling the person who made the statement for cross-examination; the application of special considerations when the court determines what weight, if any, to give to the hearsay evidence; and the application of rules relating to competence and credibility.
	Noble Lords can, therefore, be assured that the respondent to an application for a serious crime prevention order will be in the same position as any other person facing an application for a court order. In addition, due to the nature of the cases in which applications for serious crime prevention orders are likely to be made, it is unlikely that hearsay will beany more than a limited part of the case that willbe presented to the court by the relevant applicant authority. The court is very familiar with attributing weight to evidence depending on its quality and nature. The reason for this is that often law enforcement officers will be able to give evidence of a person's activities and the purpose of those activities from their own knowledge rather than having to rely on information from members of the public. So we think that there is a very solid base here.
	I hope that now that I have spoken into the record all the safeguards that the noble Lord would wish there to be, he is reassured.

Lord Thomas of Gresford: My Lords, I am most grateful to the Minister for giving me that comprehensive reply, but it does not satisfy me, as it does not recognise the criminal nature of the proceedings.
	The whole purpose of the rule against hearsay is to prevent people being convicted on evidence that they cannot actually cross-examine. Hearsay means that the person on whose statement the prosecution relies cannot be cross-examined or questioned. It is apparent that under the provisions of the Bill it would be possible for a police officer, for example, or a member of the investigatory services to go into the witness box and say, "I was told this by X", and there is no way in which to challenge that. The consequences on the individual facing the order are, nevertheless, severe:he can be subjected to a serious crime prevention order, which has the potential for enormous restrictions on his freedom of communication, travel and everything else. Whereas the House of Lords was prepared to accept hearsay evidence for anti-social behaviour orders, we are in a completely different league here. It is for that reason that I seek the opinion of the House on this issue.

On Question, Whether the said amendment(No. 37) shall be agreed to?
	Their Lordships divided: Contents, 43; Not-Contents, 115.

Baroness Scotland of Asthal: My Lords, as part of the consultation process for and following the Green Paper, my honourable friend Vernon Coaker met several stakeholders, including Liberty, to discuss the planned provisions for the Bill. Liberty raised the concern during that meeting that the subject of an order could be placed in an invidious position by being subject to conflicting obligations—for example, an obligation to disclose a piece of information under the provisions of an order that might conflict with a contractual duty of confidence.
	We do not want these orders to affect pre-existing restrictions such as these, but equally we do not want to provide a gap whereby serious criminals could seek to create such restrictions to frustrate the court's order. As a result, we thought it best to provide a protection for the subject of an order so that he or she would not be liable for any breach of a restriction on the disclosure of information occasioned by complying with an order. The amendment provides for the efficacy of the orders while offering important protectionsto the subject of the order. I have no hesitation in commending it to your Lordships. I beg to move.

Baroness Anelay of St Johns: moved, as an amendment to Amendment No. 39, AmendmentNo. 40:
	After Clause 35, line 3, at beginning insert "Subject to the provisions of sections 11 to 14,"

Baroness Scotland of Asthal: My Lords, perhaps I may apologise to the noble Baroness. Because I thought that we were in agreement, I did not avail myself of the opportunity of dealing with all the technical niceties. As always, the noble Baroness, as quick as a flash, has reminded me that "full and long" often ends up being "shorter".
	Amendment No. 39 makes provision for the protection that I have already described. The second subsection reminds the reader that, while compliance with any requirement over-rides any restrictions on disclosure, there are still restrictions on the requirements that can be imposed. There is now a significant number of such signpost provisions on the statute book and we consider them to be a useful tool to help in the understanding of the legislation.
	Perhaps I may provide the noble Baroness with examples of where she can find similar signposting provisions, not just in relation to the Home Office. Provisions similar to subsection (2) of the new clause are to be found in Sections 1(3) and 4(4) of the Companies Act 2006, Sections 1(6), 2(2) and 3(2)of the Income Tax (Trading and Other Income)Act 2005, and Section 5(6) of the Housing Act 2004. There are similar provisions in the Armed ForcesAct 2006, the Charities Act 2006 and the Serious Organised Crime and Police Act 2005, the last of which the noble Baroness will remember. This tool has been used with effect in the past and it helps better to understand the legislation.
	To make the amendments as tabled would be inappropriate, as they do not reflect the order of events that would occur. The order of events is that a requirement is imposed in an order, a person complies with it and that compliance does not breach anyother restrictions on disclosure that might exist. The statement that the compliance does not breach any restrictions on disclosure is not, strictly speaking, limited by the statements in Clauses 11 to 14 about the types of requirements that can be imposed. Rather, the statements in those clauses merely help to set the context within which the statement about compliance operates. Logically, they predate it. I hope that that explanation will help the noble Baroness to understand how the draftsmen have crafted the Bill to do exactly what she would want it to do, as is often the case.

Lord Henley: My Lords, knowing the Government's total, absolute and complete commitment to freedom of information—exemplified by their Freedom of Information Act and the way in which they have operated it ever since, and possibly by how they seek to amend it—I am sure that the noble Lord will be able to give a full, frank and welcoming responseto my noble friend's amendment. I look forward to hearing it.

Lord Bassam of Brighton: My Lords, I shall certainly try to be frank, but not too full; I can cut the time that I need to detain your Lordships' House on this matter by more than a fraction. I thank the noble Lord, Lord Lucas, for tabling the amendment andthe earlier draft. I understand that at least part of the intention behind it was a concern to ensure that the orders were not used inappropriately; I certainly side with that. I hope that my noble friend Lady Scotland's earlier comments about the way in which the process would work in terms of making an order provided additional reassurance on the point.
	The High Court provides a more than adequate buffer against any attempt to use the orders inappropriately. However, as I said in my letter to the noble Lord on the subject, following discussion of a similar amendment in Committee we agreed that we needed to ensure that the orders were used and, more appropriately, managed in the most effective way. For example, we need to make absolutely certain that one hand knows exactly what the other is doing. Where SOCA or the Serious Fraud Office is contemplating seeking an order against the same person, they should of course be working closely together. Similarly, it will be very useful to know in several years' time, when the orders have taken root, what innovative terms and approaches have been used by the courts and have worked best for one area of law enforcement, so that they can be used by others.
	For that to happen, there will be a central recording of details of orders. However, we have been looking at exactly how that will be achieved and have not yet bottomed out the exact form in which the register will be undertaken. For example, we will need to consult the Information Commissioner further to ensure that all data protection issues are taken into consideration. No doubt we need to properly examine how freedom of information issues might be affected by that.
	I hope that the noble Lord will accept that I have to resist the amendment, but will be reassured by what both the noble Baroness, Lady Scotland, and I have said in relation to our intention in this regard. I am more than willing to listen to any suggestions that he might have, now or later, on how the work canbe taken forward. I acknowledge his interest and, moreover, his expertise in the area, and I am sure that we would greatly benefit from some further advice and consideration on his part. We are with him in spirit, and are trying to work out the precise mechanics. We shall gratefully receive any help that noble Lords, including the noble Lord, Lord Lucas, can give us on the matter.

Lord Thomas of Gresford: moved AmendmentNo. 43:
	Clause 40, page 25, line 18, at end insert "; and
	(c) his act was unreasonable"

Lord Thomas of Gresford: My Lords, we are back in the field of reverse burdens of proof, which has exercised the human rights court on many occasions. These are matters that we raised in Committee, but I am grateful to Liberty for focusing our minds on the issues again. The amendments would require the prosecution to establish that a defendant's act was unreasonable in order to convict him of an offence under Clauses 40 or 41. We also support Amendment No. 63, which would remove Clause 46, under which a person has a defence if he can prove in relation to Clauses 40 and 41 that he has acted reasonably.
	In an article in the Criminal Law Review in December 2006 entitled "Inchoate Liability for Assisting and Encouraging Crime—the Law Commission Report", GR Sullivan said that,
	"the belief differs from the intent offence in that it will sweep up persons who have to deviate from normally lawful routines to avoid criminal liability: taxi drivers, fertiliser sellers, weighbridge operators, generous hosts, shopkeepers and so on. If they carry on providing their services or ministrations, knowing or believing that they will assist a crime, they will commit the belief offence. The offence will enlist a mixed cast: there will be sheep and goats".
	The Government themselves acknowledged that the offences in Clauses 40 and 41 would, in principle, inappropriately cover some kinds of activity, giving the examples:
	"D, a motorist, changes motorway lanes to allow a forthcoming motorist (P) to overtake, even though D knows that P is speeding; D, a reclusive householder, bars his front door to a man trying to get into his house to escape from a prospective assailant; D, a member of a DIY shop's checkout staff"—
	the defendant—
	"believes the man (P) purchasing spray paint will use it to cause criminal damage".
	In each case, the defendant has done nothing criminal himself but believes that what he is doing, which is perfectly lawful, may assist someone in committing an offence—pulling from the outside lane of the motorway into the centre to allow a speeding motorist to go by, and so on.
	In its 2006 report, the Law Commission also highlighted how the belief offences could sweep up justified behaviour. In paragraph 3.45, it said that it recognised that,
	"extending liability beyond cases where it is D's intention that the conduct element of the principal offence should be committed, raises the spectre of",
	the defendant,
	"incurring criminal liability for ostensibly lawful acts. A protestor may believe that his or her lawful protest will encourage the commission of retaliatory criminal conduct by others".
	You might take for an example someone waving a placard in front of a crowd that he knows will react to it and cause a riot. The Law Commission continued:
	"Authors, journalists and publishers may believe that material which highlights what some would consider to be cruel or barbaric practices will encourage others to commit offences against those carrying out the practices".
	An example would be writing a newspaper article highlighting cruelty to foxes, or something of that nature.
	Where an action is entirely reasonable and isnot intended to encourage or assist in the commission of an offence by another person, we believe thatit should not be criminalised. That much is uncontroversial. The question is who should bear the burden of showing that the actions in question were reasonable. At present, the offences in Clauses 40 and 41 cast the net very wide, catching the kinds of behaviour set out above. Under the Bill, the Government expect the defendant to do the work of using the vaguely worded defence in Clause 46 to try to wriggle out of the net. He is the person who has to establish that his actions were reasonable in the circumstances and so should not lead to a criminal conviction. That could mean that the motorist who lets the speeding driver go by, the reclusive householder who bars his front door to a man trying to get into his house to escape from an assailant or the person on the check-out staff might be subject to the stress of being prosecuted and having to defend themselves in court.
	Secondly, establishing the reasonableness of one's actions is a very high hurdle to cross. The defendant has to persuade the jury that his actions were reasonable and that they should not carry criminal liability. I referred earlier to the difficulty of proving the inherently uncertain concept of acting reasonably. We, together with Liberty, believe that the burden of showing the unreasonableness of the defendant's actions should be borne by the prosecution and that the belief offences in the Bill should cover only actions that are proved by the prosecution to be unreasonable in the circumstances.
	In response to this argument, the noble Baroness, Lady Scotland, said that only the defendant is in a position to explain why he acted as he did. She said:
	"The particular circumstances that justify their behaviour will be peculiarly within their own knowledge. As in all cases in which the burden of proving a defence is on the defendant, the standard of proof is the balance of probabilities".—[Official Report, 21/3/07; col. 1245.]
	We do not agree with that argument. The matterthat has to be established by way of a defence isthat the actions in question are "reasonable in the circumstances"—not reasonable as the defendant considers or believes them to be, but objectively reasonable. The question is: would the average person in the street consider the actions reasonable? The defendant's state of mind is not determinative of this in any way. Objective reasonableness—having to prove when you are a defendant in court that you have objectively acted in a reasonable way—is not a fair burden to impose on a person facing the sort of offences suggested against him. I beg to move.

Lord Thomas of Gresford: My Lords, if the prosecution proves the ingredients of the offence asit stands, the defendant will be found guilty, even though he personally believed at all times that he was acting reasonably. Under Clause 46, his subjective view is neither here nor there; he needs to go beyond proving that he thought that what he was doing was perfectly reasonable. In the eyes of the judge or jury trying him, he has to establish that it was objectively reasonable for him to act in the way that he did. We are imposing a significant criminal liability—

Lord Thomas of Gresford: My Lords, with the greatest respect, that indicates the problem. I hope that I am not baffling your Lordships by what I am saying. Clause 46 states:
	"A person is not guilty of an offence under section 40 or 41 if he proves—
	(a) that he believed certain circumstances to exist;
	(b) that his belief was reasonable; and
	(c) that it was reasonable for him to act as he did in the circumstances as he believed them to be".
	It follows that the question is not what he thought was reasonable but what was objectively reasonable in the circumstances as he believed them to be. This is not subjective; it is objective, and it is objectionable. However, I shall leave it to the courts to determineat some future date. I am sure that there will be considerable litigation—I never object to that. Accordingly, I beg leave to withdraw the amendment.

Lord Henley: My Lords, I shall also speak to Amendment No. 48. This is the first time I have spoken on Part 2. I thank the noble Baroness for her letters to my noble friend Lady Anelay on Part 2. One was dated 24 April; the other, in a manner that one gets rather used to with an office as efficient as the Home Office, was undated but sent, I believe, on17 April. I will refer to it as the long letter, as it issix pages long. A third letter, which opens "Dear colleague", dated 20 April, also dealt with amendments to Part 2. The Minister will remember that my noble friend Lady Anelay and I met her and her officials to discuss some of these issues. We are broadly content on these matters but I would be grateful for a response on a few further points, in particular so that the Minister can have them recorded in the Official Report.
	I wish to make a further point about Home Office correspondence, including letters to my noble friends Lady Anelay and Lady Noakes, one of which is dated today or perhaps yesterday. The Home Office, in its kindness, sent that letter by e-mail, allowing us to print it off. I do not know what it is about Home Office systems, but for some reason its use of Adobe for sending e-mail attachments means that it takes for ever to print them. Perhaps the Minister could ask her officials to look at that.
	Amendment No. 47, which was tabled as Amendment No. 96H in Committee, would remove subsection (6) of Clause 42, thereby removing the assumption that D, or the defendant, is able to do the act in question. The Minister stated in her letter that relying on Clause 58(1) as the test for deciding whether an individual is capable of encouraging or assisting, as I had suggested, would cover all the relevant avenues insufficiently. I am content with her response on that, which is covered in the first part of her letter.
	Amendment No. 48, which was AmendmentNo. 98 in Committee, would delete subsection (8)in Clause 42, removing the possibility of an act constituting:
	"(a) a failure to act;
	(b) the continuation of an act that has already begun; [and]
	(c) an attempt to do an act".
	Like Amendment No. 47, this remains a probing amendment. The Minister will remember that in Committee my noble friend asked the noble Lord, Lord Bassam, whether Clause 42 broke the link between prompt and action. For example, were a preacher to encourage another to blow up Parliament but did not commit the offence himself, would the Bill allow his prosecution? The Minister explained in her letter that that was not the case under Clause 42(8) but that the preacher could be prosecuted under the offence in Clause 39 regardless of whether an action followed.
	Although I am broadly content with that response, I should be grateful if the Minister could respondto two remaining doubts. First, were a preacher to publish a video encouraging one or a number of persons to blow up Parliament on the basis of religious fanaticism or whatever, at what pointwould that encouragement cease to be classified as encouragement of racial hatred and begin to be classified as straightforward encouragement? Would the two offences run parallel? Secondly, my noble friend asked the Minister whether the Government had estimated how many people would fall foul of this provision. If the Minister has an answer, I should be grateful if she could give it to the House. I begto move.

Baroness Scotland of Asthal: My Lords, I thank the noble Lord for indicating kindly that he broadly supports our position. I am also grateful for his references to the letter. I am conscious that its contents have not been read on to the record, so I shall outline it, with some of the examples given, to clarify why noble Lords opposite are persuaded that what we now have is satisfactory.
	As noble Lords know, Clause 42 sets out how the offences in this part of the Bill must be proved. Subsection (5) sets out that D can be convicted if he believed, or was reckless as to whether, P would operate with the required fault element for the anticipated principal offence, and that it is sufficient if P does not have the fault necessary but D does. That would ensure that D could not escape liability by encouraging or assisting an offence by an innocent agent. Subsection (6) of Clause 42, which Amendment No. 47 would remove, provides that where the prosecution seeks to prove a case on that basis, there will be an assumption that D is physically able to do P's act. As we have discussed before,that would cover a scenario where D, a woman, encourages P, a man, to have sexual intercourse with V. D tells P that V will resist and say to him that she does not want to but that it is all part of a game. P reasonably believes that V would consent to sexual intercourse with him, so he would not be guilty of rape. However, these provisions ensure that D could be found guilty of encouraging and assisting rape, as she intends rape to happen despite the fact that she would not be physically capable of raping V.
	In Committee, the noble Baroness, Lady Anelay, queried why this subsection is necessary and wondered whether it would be preferable to rely on Clause 58(1), which was Clause 15 of the Law Commission's draft Bill, to which the noble Lord, Lord Henley, referred. It sets out that the term,
	"being capable of encouraging or assisting",
	can include references to doing so by threatening or putting pressure on another person to commit the offence.
	I am also grateful to the noble Lord, Lord Henley, for indicating that he agrees with us that relying on Clause 58(1) would not adequately cover this situation. The Law Commission also took that view. Its draft Bill included a version of Clause 58(1)—Clause 15 of the draft Bill to which the noble Baroness referred—and also Clause 42(6), which was Clause 11 of the draft Bill, because a person may not use threats or pressure in this situation. In the example I gave above, D has simply not told P the truth when she tells him that V enjoys pretending not to consent to sexual intercourse. D has not used threats or pressure. The Government therefore agree with the Law Commission that it is not sufficient to rely on Clause 58(1) to cover this scenario. It is for that reason that I must resist Amendment No. 47. I am grateful for the indication that noble Lords opposite respectfully agree.
	Amendment No. 48 also amends Clause 42 and raises another issue on which there was confusion in Committee. Amendment No. 48 removes Clause 42(8) which sets out what is meant by the phrase "doing of an act" and includes a failure to act. It caused some confusion in our debate. It refers to an act by P in which D could be guilty of encouraging and assisting P in a failure to act where that failure to act would constitute the conduct element of an offence. For example, it would cover D who encourages P, his wife, to starve their child to death. So it covers an act of omission. D could be found guilty of encouraging and assisting murder. It is therefore not correct to talk of P "doing an act". She has not done an act; rather she has failed to do an act. That failure constitutes the offence. This subsection does not impose liability for omissions. That is dealt with in Clause 58 and applies only where D has a duty to act but fails to take reasonable steps to perform that duty, intending or believing that he will assist an offence.
	The noble Lord, Lord Dholakia, asked in a previous discussion whether the provision would impose liability for failing to stop a crime in progress or failing to help someone who has been attacked. I can confirm that it would not.
	The noble Baroness, Lady Anelay, queried whether this subsection breaks the link between the "prompt" and the "action"—the point on which the noble Lord, Lord Henley, wanted an answer. She gave the example of prosecuting a preacher who released a video inciting others to commit offences even where no such video was found in the possession of the bomber who was arrested. That is not the effect of this clause. In that case, the preacher would not be prosecuted for encouraging the attempted bombing. However, it is important to make clear that there does not need to be a link between an act of encouragement or assistance by D and any eventual offence for liability for any of these offences to arise. The reason is that these offences are inchoate and impose liability regardless of any offence or harm resulting from D's act. So if a preacher intends to incite a specific offence by releasing a video, he could be prosecuted on the offence in Clause 39 regardless of whether anyone has actually been encouraged or assisted by it. If he is inciting offences in general, he could be prosecuted only on an offence under Clause 41 as he cannot be linked to a specific offence. Even then, a prosecution under Clause 41 would be possible only where the prosecution was able to identify a number of offences that he believed might have been committed as a result.
	With that rather long answer, I hope that I have satisfactorily clarified the purpose of these subsections and that noble Lords will agree that the provisions are necessary. I particularly wanted to accomplish that because we have discussed this matter in some detail and for some time. It is not an easy matter. I hope that this explanation will enable those who try to define why we have done this to understand better why we have done so. I hope that that answers all the questions that the noble Lord raised with me.

Lord Henley: My Lords, the Minister said thatthis is not easy, and she gave us a long and detailed explanation of what might be a rather fanciful case. It almost took me back to the days when I was doing my Bar exams. The Minister will probably remember a similar case involving either rape or burglary where the chap climbed up a ladder naked except for his socks. I think the case was called Thomas. I forget the outcome, but I am sure that law students will have just as much fun with it in the future. If the noble Baroness is looking for another job in the months to come, a career lecturing in law might be for her. She can explain the possibilities of these new clauses in due course.
	Seriously, however, I thank the Minister for the explanation. I think that I have got it and I am grateful for that. I beg leave to withdraw the amendment.

Lord Evans of Temple Guiting: rose to move, that the draft order laid before the House on 26 March be approved.

Lord Evans of Temple Guiting: My Lords, the Government of Wales Act 2006 received Royal Assent on 25 July 2006 and is due to come into effect fully following the appointment of the First Minister after the Assembly elections in May this year. The 2006 Act already makes a number of consequential modifications to other enactments which are set out in Schedule 10 to the Act. It also makes a number of transitional provisions which can be found in Schedule 11to the Act. This order makes further consequential modifications and transitional provisions under powers in the 2006 Act.
	The Select Committee on Delegated Powers and Regulatory Reform considered these powers and reported on them in its 17th report of the 2005-06 Session. The committee was content that the Secretary of State should have the power to make such modifications and transitional provisions. There is a similar power to make consequential modifications in Section 105 of the Scotland Act 1998, which mustbe read with Sections 112 and 113.
	The power in Section 160(2) of the 2006 Act to modify an Act of this Parliament is subject to affirmative parliamentary procedures. The powerin Section 162(2) of that Act to make further transitional provision is generally subject to the annulment procedure before this Parliament. However, in cases, such as in this order, wheresuch provision includes amendments to specified paragraphs of Schedule 11 to the 2006 Act, then even the transitional provisions are subject to affirmative procedure before this Parliament, hence our debate here today. Noble Lords can therefore be assured that this order is being subjected to the more rigorous scrutiny of the affirmative procedure in this place and in the other place.
	With respect to the Secretary of State's power to make transitional provisions by order, the committee considered that where that power is used to amend Schedule 11 to the 2006 Act, the affirmative procedure must apply. The transitional provisions contained in this order amend Schedule 11 and are, therefore, also subject to the affirmative procedure.
	In terms of volume, the greater part of thisorder consists of consequential modifications toother enactments. These modifications are set out in Schedule 1 to the order. I do not intend today to go through and explain all these modifications individually. The Explanatory Memorandum explains what eachof the modifications does. However, I believe it would be worth explaining the context in which the modifications are made, and why they are consequential on the provisions of the 2006 Act.
	At present, as noble Lords will be aware, the National Assembly for Wales is a corporate body, and there is no legal separation between the Assemblyand the Assembly Government. After the Assembly elections in May, there will be legal separation, so that the Assembly as legislature is formally separate from the Assembly Government, including the Welsh Ministers, as Executive. In addition, the Assembly will havenew legislative powers to pass Assembly measures, and the executive functions that the Assembly currently exercises will transfer to and vest in the Welsh Ministers instead. Those executive functions transfer at thetime of separation to the Welsh Ministers underparagraph 30 of Schedule 11 to the 2006 Act. Many of those executive functions are functions that have been given to the current Assembly in or under Acts of Parliament. As a result of the transfer of those functions, other references to the current Assembly in those Acts often also need to change, for example, to references to the Welsh Ministers.
	Paragraph 32 of Schedule 11 to the 2006 Act makes provision for such references to the existing Assembly in other enactments, including in other Acts of Parliament, to be construed as references to the Welsh Ministers, or indeed to the First Minister, Counsel General, Assembly commission or new Assembly, as appropriate depending on where the relevant function has been transferred. However, where that general glossing provision would not give the correct result, or where it is thought clearer to make the amendments directly to the legislation in question, these have been provided for in this draft order.
	Some of the consequential modifications to other Acts made by this order are required because ofthe structural changes under the new devolution settlement, in particular the legal separation of the legislature from the Executive, and because of thenew roles that the new Assembly and Assembly Government have as a result. An example of this is the modifications to the Local Government Act 1998, which are in Schedule 1, paragraphs 25 to 30 ofthe order.
	Without these modifications, the functions ofthe existing Assembly in relation to making local government finance reports would merely transfer to the Welsh Ministers, in accordance with paragraph 30 of Schedule 11 to the 2006 Act. However, as a result of the modifications in this order, while the function of making such reports will be a function of the Welsh Ministers, there will also be a role for the new Assembly in scrutinising and approving these reports. The new Assembly's scrutiny and approval role is sensible and appropriate, in the context of the legal separation of the legislature and executive.
	In addition to the modifications required as a result of the structural changes, there are also modifications required because the mechanism in paragraphs 30 to 32 of Schedule 11 to the 2006 Act cannot operate to achieve the textual amendments which are necessary to take account of the new devolution arrangements under the 2006 Act. For example, Section 21A of the Sex DiscriminationAct 1975, as amended by the Equality Act 2006, makes it unlawful for a public authority to carry out a discriminatory act in exercising its functions. However, under the Sex Discrimination Act, this prohibition does not apply to certain listed functions. The listed functions currently include, among other things, preparing and making Bills and Acts of this Parliament and of the Scottish Parliament. This order adds measures, proposed measures, Bills and Acts of the National Assembly for Wales to that list.
	The preparing, considering and making of subordinate legislation by the current National Assembly for Wales already appears in the list. However, this order changes the reference to the Assembly to a reference to the Welsh Ministers, the First Minister for Wales or the Counsel General to the Welsh Assembly Government. That is because they, rather than the Assembly, will have the functions of making subordinate legislation under the new devolution arrangements.
	Noble Lords may have noted that paragraph 4.6 of the Explanatory Memorandum discusses the National Assembly for Wales (Diversion of Functions) Order 2007, and the relationship between that order and this one. The diversion of functions order was considered by the Assembly in plenary on 21 March, and was made by Her Majesty in Council on 4 April. The diversion of functions order transfers to the new Assembly certain functions that would otherwise be transferred to the Welsh Ministers under paragraph 30 of Schedule 11 to the 2006 Act. The provisions of the diversion of functions order should be read with the consequential amendments made by this order—for example, in relation to the Food Standards Act 1999—to see the full picture in terms of how other Acts will operate in the light of the new devolution settlement in Wales.
	I have spent most of my time discussing the consequential modifications aspect of this order, but I would also like to discuss briefly the transitional provisions contained in the order. Schedule 11 to the 2006 Act, as I have already mentioned, contains a large number of transitional provisions, to accommodate the change between the current devolution settlement and the new one. At paragraphs 33 to 35, it tackles the problem of how to provide for legislative procedures—that is, affirmative or negative or even no procedure—to the exercise of Welsh Ministers' functions of making subordinate legislation.
	In future, Acts and Assembly measures that give powers to make subordinate legislation to the Welsh Ministers will also specify the legislative procedure that is to apply in respect of that subordinate legislation, whether it has to be approved by a resolution of the Assembly before it can be made, or whether it can be made without such a resolution but is subject to annulment by the Assembly.
	However, the powers to make subordinate legislation that are currently vested in the Assembly—and will in future be vested in Welsh Ministers—are not subject to any specified legislative procedure. That is because the subordinate legislation is made by the Assembly, a democratically elected body, and it is for the Assembly itself to decide what procedures it will follow in making subordinate legislation. Therefore, the Assembly's Standing Orders make certain provision for procedures to be followed in exercising powers to make subordinate legislation.
	Now that those powers are to be vested in the Welsh Ministers, provision is to be made for an Assembly legislative procedure to apply to them. Paragraphs 33 to 35 of Schedule 11 provide for that in most cases, but since the 2006 Act received Royal Assent, we have discovered further powers to make subordinate legislation which are not caught by paragraphs 33 to 35, and in respect of which, therefore, no legislative procedure would apply under the new devolution settlement. We are picking up those powers, along with those conferred on the Assembly since the passage of the 2006 Act, in this order, so that an appropriate procedure applies to them. The powers and procedures are set out at paragraphs 4 and 5 of Schedule 2 to the order.
	As I have outlined, this order, in all its detail, is necessary to implement fully the policy contained in the Government of Wales Act 2006. I commend the draft order to the House. I beg to move.

Lord Roberts of Conwy: My Lords, I am grateful to the Minister for setting out the main provisions and significance of the order before us today. The access to election documents regulations we are to discuss separately are relatively short, but the modifications and transitional provisions order is much longer at54 pages, including the excellent Explanatory Notes.
	Both statutory instruments merit close scrutiny, examination and explanation, which they have hadto a substantial extent in last week's discussion inthe other place. However, I welcome the further opportunity for an exchange of views that your Lordships have today. The order is not quite as long as the 277-page behemoth that we had the pleasure of discussing earlier this year, but at 54 pages of somewhat complex detail it remains an arduous read.
	At a quick count, the order makes amendments to more than 30 different Acts of Parliament, and covers a vast amount of ground in implementing the Government of Wales Act 2006, the main effect of which, as the Minister said, is to separate the assembly legislature from the Executive: the Welsh Assembly Government. This involves an extensive transfer of functions, mirrored in this order by the frequency of the modification,
	"for 'National Assembly for Wales' substitute 'Welsh Ministers'".
	I do not know if I am alone—I doubt it—but I often wonder whether the Welsh electorate or the National Assembly fully realise the magnitude and radicalism of the changes they will face after the election on3 May, when the new Act's provisions introduce new-style devolution. Out goes the corporate Assembly, and in come the legislative Assembly and Assembly Government.
	Public reaction to the change depends on the conduct of the Assembly Government that follows the election. There is currently wide speculation as to what kind of Government that might be. Almost every conceivable form of coalition is ruled in, and I must not add to speculation in this intensive pre-election period. As noble Lords will be aware, however, we Conservatives are committed to making devolution work successfully in Wales. We recognise that there is no turning back the clock on devolution and want to see it progress and improve people's lives. The separation of legislative and executive power makes sense and is a real step in the right direction. We welcome the new provision in this order to enable the Assembly to approve or disapprove of secondary legislation, thereby ensuring the accountability ofthe originating Ministers. We also appreciate the importance of the slightly mystifying diversion of functions order, which again ensures that Ministers are answerable to the Assembly where appropriate, as described in the Explanatory Memorandum.
	I said a few moments ago that the people's reaction to the new powers conferred by the Government of Wales Act 2006 depends on the conduct of the new Government. It also depends a great deal on the conduct of the new Assembly as legislature, holding Ministers to account, scrutinising proposed Assembly measures and parliamentary legislation affecting Wales. If it does this well—I hope that it does—it may be, in the fullness of time, that the electorate will develop sufficient confidence in the Assembly to require a referendum to be held on further legislative powers. I am not opposed in principle to such powers being granted to the National Assembly, but I firmly believe that they should be granted only with the full approval of a referendum of the people affected by the exercise of such powers.
	As the Minister has outlined, the order before us makes consequential amendments to various piecesof legislation in Schedule 1, and some transitional provisions in Schedule 2. These provisions are made under Schedules 10 and 11 respectively of the Government of Wales Act, as the Minister told us, and flow from the provisions within the legislation that formally separate the legislature from the Executive in Wales.
	I shall not dwell in detail on either the consequential changes to legislation or the transitional arrangements, which have been amply covered in the Explanatory Notes and Memorandum as well as ministerial speeches here and in another place. However, I have a number of particular points and would be grateful if the Minister could address them.
	First, can the Minister expand a little on the consultation procedures that have been followed for this order? Paragraph 7.10 of the Explanatory Notes to the order states that there has been no public consultation but that "relevant interested parties" have been consulted. Could the Minister briefly explain why it was felt that no public consultation was necessary, and tell noble Lords which "relevant interested parties" were consulted and how they were selected? Secondly, what are the anticipated costs of the transitional provisions? As I have said, I welcome the separation of the legislature and the Executive and the creation of an administrative commission within the National Assembly.
	These are major changes. Life at the National Assembly will never quite be the same again. Of course, there will be a period of bedding in for these new arrangements and it may be difficult to estimate final costs, but are there currently any estimates of what the transitional aspects of the order before us today will cost the National Assembly? Ultimately, we are talking about tax-payers' money and I am sure that noble Lords can all agree that we should aim for the highest degree of transparency where spending public money is concerned.
	Finally, can the Minister assure us that thereare no hidden or obscure transfers of powers from Westminster to Cardiff, notably in Schedule 2? I have sought to be thorough in my examination of the order but I by no means claim infallibility, and seek an assurance from the Minister that there is nothing recondite by way of a transfer of power from here to Cardiff in this order. Assuming that these points are addressed by the Minister in his usual clear, concise and eloquent fashion, we will be content to let the order proceed.

Lord Livsey of Talgarth: My Lords, I apologise to the noble Lord, Lord Rowlands, but I think that this is the right procedure.
	Given that the Government of Wales Act 2006 succeeds the 1998 Act, this is a necessary order. I am grateful to the Minister for the way in which he presented the explanation of the order and for the Explanatory Notes. As the noble Lord, Lord Roberts of Conwy, said, it is a substantial document. Perhaps wisely, I took a look at it yesterday, and thank goodness I did because it incorporates so much. This is a transition from one piece of legislation to another. It is obvious that consequential amendments must be made for the new Assembly which comes into being after the election results on 3 May.
	I am concerned about some aspects of the process being carried out and the origins of some of the opinions and assertions stated in the Explanatory Memorandum accompanying this constitutional law on devolution for Wales and emanating from the statutory instrument. The statutory instrument is substantial. One is tempted to say that it is turgid in length. At the same time it encompasses a great deal. It incorporates the consequential amendments to a multiplicity of existing Acts of Parliament and inserts them into the context of the Government of Wales Act 2006. When one casts the net wide it incorporates the Representation of the People Act 1983, the Mental Health Act 1983, the Race Relations Act and many other Acts of Parliament. One can see why it is necessary to do that. The kindest thing to say is that it is very thorough, and so it should be.
	The Government of Wales Bill successfully passed through this House last summer, and it passed the test of democratic accountability as far as it goes. I shall not carp on too much about the statutory instrument, except where it appears to take within it a number of decisions and value judgments on the legislation itself. I shall refer to one or two things with which I agree and others which I question for my party.
	I agree with the noble Lord, Lord Roberts of Conwy, and the Minister that the separation between the Executive and the legislature is vital. We discussed that when the Government of Wales Bill was going through this place. The new Assembly is an unincorporated association. We think that is excellent; and so it should be.
	During the passage of the original Government of Wales Act there was strong lobbying for committees. Most of us are of a democratic inclination and wanted to see participation by the committees of the Assembly. But there is no doubt that this is a much more businesslike legislature than the one set up by the original Government of Wales Act.
	Other factors cause me a little concern. There is a section under Schedule 10 which refers to Ministers of the Crown. It states that,
	"when the Minister of the Crown exercises the function, [it] applies to the exercise of that function by the Welsh Ministers. Where there is no equivalent Minister of the Crown function, the Assembly legislative procedure has to be specified or no procedure will apply".
	I think that I gather from what the Minister said that the Assembly would be involved in this piece of decision making.
	The National Assembly for Wales (Diversion of Functions) Order requires very agile reading but I think I know what that is about. Some of thathas already been achieved by the Assembly. I wishto raise one or two other points. For example, in paragraph 4.8 of the Explanatory Memorandum there is a phrase that occurs twice. It says:
	"However, there are a few functions that are otherwise caught by paragraph 30(1) but which it is considered should be functions of the new Assembly".
	Who considered that? I assume it is the parliamentary draftsmen and draftswomen and that it comes from a legal angle. I hope that that is the case. It should be, but I would like the Minister to clarify it. That phrase appears again in the text. I hope I am right in my assumption that it stems from a legal basis.
	We agree particularly with paragraph 4.10 of the Explanatory Memorandum that Orders in Council should be a function of the new Assembly rather than transferred to the Welsh Ministers—to paraphrase what is said there. There are other issues which occur. However, I would say that the document threads its way through a fairly tortuous path but I think that I can make sense of it.
	Finally, like the noble Lord, Lord Roberts of Conwy, I find rather extraordinary the statement in paragraph 7.10 of the Explanatory Memorandum that,
	"there has been no public consultation on this Order when in draft, relevant ... parties have been consulted".
	The Act, as the Minister said, received Royal Assent last July. Nearly nine months have passed since then. Why did the document not go out for consultation much earlier? It is very detailed and we have received it nine days before the election and the election results. I have seen this sort of thing happen under various governments. I hope that it is not deliberate and that this is not skipping around a bit and not having proper scrutiny of the statutory instrument. No doubt the Minister will attempt to reassure me on that point.

Lord Rowlands: My Lords, I rise to ask my noble friend for clarification about the consequences and the impact of the order and these transfers on the process of subordinate legislation and the way in which subordinate legislation will be dealt with.I do so because I frankly believed that the first Government of Wales Act, which vested those subordinate legislative powers—because the Assembly was a corporate body—in the Assembly as a whole, led to a very refreshing and powerful degree of scrutiny. Since the establishment of the Assembly, secondary legislation has been good. There has been consultation, the process has gone through committee, there have been the debates and, above all—something we have never had the privilege of doing here or in the other place—there has been the ability to table amendments to subordinate legislation.
	As a long-standing former Back-Bencher in the other place I was a great supporter of the right to amend subordinate legislation. This House and the other place were never granted the power to do so. Yet the National Assembly, because those subordinate powers were vested in the Assembly as a whole, has exercised the right to amend subordinate legislation as it has gone through the Assembly. Now, as I understand it—and I think sadly so, but it is a matter entirely, as my noble friend will tell me, for the Assembly itself—under these orders we are transferring the making of subordinate legislation from the Assembly to Welsh Ministers. It is utterly logical that we should do so because now we are abolishing the corporate character and status of the Assembly and returning to a traditional relationship between a legislature and Ministers.
	I understand that one decision taken is that the scrutiny of the legislation—subordinate legislation that will be transferred to Welsh Ministers under the order and under the Government of Wales Act—will not be amendable in the Assembly. Therefore, sadly, from what I thought was a rather innovative and refreshing change conducted by the Assembly in the way in which it handles subordinate legislation, it has gone back to our old-style Westminster model of having subordinate legislation that will be approved by either negative or affirmative resolution, but not subject to any form of amendment. I just wantto register the fact that that is rather sad and retrogressive in procedure.
	My noble friend will say that it is right that the Assembly makes that decision. But in respect of subordinate legislation that flows from framework clauses that both these Houses have passed and granted to the Assembly during the past few years,we have a vested interest in what happens and that legislation is processed and scrutinised. I say that because I can remember a number of occasions here when we have had to fight an understandable queasiness to grant the sweeping framework powers that some of the framework clauses grant. A case that I, and other Members of this House, have made to justify that was that we were handing the framework powers to an Assembly that had the wonderful power of scrutiny and even of debate and amendment.
	I think that I have found the answer in paragraph 4.8 of the Explanatory Memorandum, but I want my noble friend to confirm what will happen to subordinate legislation that may flow—I do not think that any has so far—from framework clauses of Bills passed by this House with the clear understanding that they would be subject to the full scrutiny of what was the Assembly procedure, including Membersof the Assembly being able to amend subordinate legislation as it passed. I understand that for new legislation which will be made by Welsh Ministers, it is for the Assembly to decide, but for subordinate legislation that flows from Bills that we have passed during the past year or two, such as the NHS Redress Bill, the education Bill and possibly a health Billwe have granted—with all the queasiness that is traditional to both Houses—the Assembly sweeping powers to make subordinate legislation. We did so because we argued that the Assembly had rigorous and vibrant scrutiny procedures, including the power to amend.
	I therefore seek assurance from my noble friend that, as I read paragraph 4.8, which deals with this aspect of the subordinate legislation that has flown, as it states, from what are known as "framework powers" and contained in the Education and Inspections Act and the NHS Redress Act. The noble Lord, Lord Livsey, rightly mentioned the phrase in that paragraph:
	"However ... a few functions ... should be functions of the new Assembly".
	As I understand it—I hope I have got it right—the framework powers that we have granted will remain within the Assembly and the making of that legislation will be an Assembly process. I seek my noble friend's clarification that what is happeningor going to happen is that subordinate legislation flowing from framework clauses in Bills that we have passed will be turned into full-blooded measures.If that is the case, I will be content, because the measures in the new Assembly are subject to thefull rigour of scrutiny and debate. Will they be amendable? In that case, I will feel happy and content. I hope that my noble friend can give me that assurance.

Lord Evans of Temple Guiting: My Lords, I start by thanking the noble Lords, Lord Roberts of Conwy and Lord Livsey, and my noble friend Lord Rowlands for their positive contribution to this short debate. A number of detailed questions have been asked. I shall try to answer most of them. If I fail to do so, letters will be dispatched with the answers.
	First, the noble Lord, Lord Roberts of Conwy,had three specific points on which he required clarification. His first point was on the consultation procedure followed for the order and why it was felt that no public consultation was required—a point also raised by the noble Lord, Lord Livsey. The order is entirely consistent with the policy already agreed under the Government of Wales Act 2006: that the legal separation of the Assembly as legislature and Assembly Government, including Welsh Ministers as Executive. As the noble Lord pointed out today, as a result of that separation, the roles of the Assembly and of the Welsh Ministers in future will be quite different. The Welsh Ministers will have executive powers in their own right and the Assembly will have new legislative powers and the role of scrutinising the actions of Ministers.
	The consequential modifications which comprise the bulk of the order in Schedule 1 contain no new policy. Their purpose and effect is to make references to the Assembly in existing legislation work to reflect the roles that the Assembly, the Welsh Ministers, the Counsel-General and the Assembly Commission will have. As there is no new policy to consider here, public consultation did not seem appropriate. However, where the modifications affect enactments that are the responsibility of Whitehall departments, those departments have been consulted. There has also been appropriate consultation within the departments of the Welsh Assembly, the Government and the Welsh parliamentary service—the latter on the basis that the staff of the parliamentary service will, in general, transfer to the employment of the Assembly Commission following separation. I hope that that explanation comforts the noble Lord, Lord Livsey.
	On the transitional provisions contained in Schedule 2, in the main, they provide for an Assembly legislative procedure to apply to subordinate legislation that may be made in future by Welsh Ministers under powers to make such legislation that already exist. Most existing functions of making subordinate legislation already have a legislative procedure ascribed to them under the provisions in paragraphs 33 to 35 of Schedule 11 to the Act. The order merely picks up those functions of making subordinate legislation not picked up in time to make it into Schedule 11 to the Act. The type of legislative procedure—affirmative or negative—has been allocated in accordance with the same principles that were applied to the functions contain in Schedule 11. Again, therefore, public consultation did not seem to be required.
	Secondly, the noble Lord, Lord Roberts of Conwy, asked about the costs attached to the transitional provisions contained in the order. I can assure him that the order in itself will not incur any additional cost for the Assembly. As I have explained, the main effect of the order is to ensure that references to the Assembly in existing legislation are corrected to refer to the Welsh Ministers or Assembly Commission where that is appropriate, and that appropriate legislative procedures are prescribed for existing functions of making subordinate legislation. Although subordinate legislation procedure in future will be different, it is expected that there will be an increase in the cost of those procedures to the Assembly.
	The noble Lord's final request was for an assurance that the order does not contain any hidden or obscure transfer of powers from Westminster to Cardiff. I can confirm absolutely that there is no such hidden or obscure transfer of powers. I am grateful for the positive reaction to the order.
	The noble Lord, Lord Livsey, asked who has decided which functions in the National Assembly for Wales (Diversion of Functions) Order 2007 should be reserved to the Assembly. It was the Secretary of State's initial consideration, as advised by officials and legal advisers, but it was the Assembly that approved the order. The noble Lord also asked why this order is being laid so long after the Government of Wales Act received Royal Assent. As noble Lords will appreciate from the length of the order, a vast amount of painstaking work in identifying all the references to the current Assembly in legislationhas been required. It is vital that this order is comprehensive to ensure that the new devolution settlement in Wales is properly implemented, so it could not have been brought before the House any sooner.
	The noble Lord, Lord Rowlands, asked whether the framework powers will be subject to Assembly scrutiny and amendment. Yes, they have been converted into powers to pass Assembly measures. These will be subject to Assembly scrutiny and amendment before being passed by the Assembly. The noble Lord also asked what the level of scrutiny would be in the new Assembly subordinate legislation procedures, especially of powers to amend orders. The Assembly will not have the power to amend subordinate legislation. It will approve or annul, depending on which procedure applies. This principle is a fundamental part of the Government of Wales Act. The Assembly will consider measures, and it is not feasible for it also to amend subordinate legislation. As I said, if I fail to answer any question asked by noble Lords, I will write to them. In the mean time, I thank noble Lords for their positive contribution to the debate.

Baroness Morgan of Drefelin: My Lords, since the National Assembly for Wales was established in 1999, it has been the practice for all election documents, after the completion of the count and the declaration of results, to be forwarded to the Assembly. This was in line with the practice at parliamentary elections, where documents were forwarded to the Clerk ofthe Crown. In future, documents relating both to parliamentary and Assembly elections will be stored by the local electoral registration officer, which will be more convenient for those who have a valid interest in inspecting them. However, because they contain personal information, it is important that access is limited to cases that can be justified on the grounds of democratic accountability and openness.
	Last December, my honourable friend the Parliamentary Under-Secretary of State for Constitutional Affairs made regulations that insert a new Part 7 into the Representation of the People (England and Wales) Regulations 2001, setting out rules for the inspection, supply and sale of the marked electoral register, the marked postal voters list, and other election documents that are open to public inspection after a parliamentary election. As a matter of principle, we intend similar rules to apply to Assembly election documents, so the purpose of the regulations before us is to apply those rules, with appropriate modifications, to Assembly documents. The main objective is to allow registered parties and candidates to request marked copies of the electoral register, the postal voters list, and the lists of proxies and proxy postal voters used at elections in which they have taken part. Those and other election documents will be open to public inspection. Thiswill not extend to ballot papers or completed corresponding number lists, which could be usedto establish how an individual has voted, or to certificates of employment of police officers or election staff.
	Inspection will be subject to strict conditions. Requests must be made in writing, specifying the documents to be inspected and the reasons for doing so. Inspection can be made only under supervision, and the information obtained can be used only for purposes specified in the regulations, which can be broadly summarised as law enforcement, research, and electoral purposes. Presenting the regulations in this way is the best way of applying similar rules to parliamentary and Assembly elections in a clear and open manner. I commend the draft regulations to the House. I beg to move.

Moved, That the draft regulations laid beforethe House on 7 March be approved. 12th Reportfrom the Statutory Instruments Committee.—(Baroness Morgan of Drefelin.)

Lord Roberts of Conwy: My Lords, we are very grateful to the Minister for her exposition of the regulations. I believe that they have their roots in the Electoral Administration Act 2006, and appear to be uncontroversial and generally welcome. As we have heard already, the regulations bring the arrangements for the availability of documents following elections to the National Assembly for Wales into line with Westminster parliamentary elections. Local electoral administration officers will be required to hold and make available a range of documents relating to the Assembly elections, rather than sending them to be held by the Assembly itself. This is a sensible measure that makes local documents available locally, provided of course that one or two important points are clarified.
	First, given that some of the documents will, by their very nature, be somewhat sensitive, is the Minister satisfied that security arrangements will be sufficiently robust in each of the locations where the documents will be stored? I am not suggesting that Fort Knox-like protection will be necessary, but it would be comforting to know that important electoral documents and information will be securely stored across Wales and will not go missing. Secondly, I would like to press the Minister a little on the conditions in which the documents can be supplied and inspected. What do the Government have in mind for such conditions? Will the conditions be uniform and apply similarly and equally to all holding authorities? Why are there no provisions in the regulations for the supply and inspection of the documents? Are further regulations anticipated?
	Finally, will the Minister expand a little on the charging regime that local authorities will put in place for access to the documents? As David Jones, my honourable friend the Member for Clwyd West, made clear when the regulations were considered in another place, it must be clarified whether the charges that authorities can make will be set centrally, capped, or left to local discretion. Given the importance ofthese documents both to political parties and other organisations, there should be some limitation on charges that may be levied. Will the Minister set out her views on this issue? Other than these minor clarifications, we on these Benches are content to see the regulations passed.

Lord Livsey of Talgarth: My Lords, I, too, thank the Minister for her exposition of the regulations, which was very clear and to the point. We regardthe regulations very much as good housekeeping, inasmuch as they lay down the same standards for Assembly elections as there are for parliamentary elections, and quite right too. The fact that they will be made available under certain conditions is also welcome, and I mirror what the noble Lord, Lords Roberts of Conwy, said about security. It is particularly important that these documents can now be located at a local level where registration officers will have responsibility.
	Perhaps I may lighten this debate slightly: I havea particular interest in some of these documents because, if I had been a football team, I would have had seven contests, lost two deposits, gained a third and a second place, and would have had three wins. Possibly more importantly, I have had eight recounts, which includes almost every possible type; namely, recounts as to whether I should lose my deposit, whether I was third or second, and whether or not I had won the election. They add up to eight recounts, which can be checked on the record.
	I note that the Explanatory Memorandum refers to:
	"Statements of rejected ballot papers",
	some of which of course are spoilt. When I was working in Scotland for a brief period, I contestedmy first election for Perth and East Perthshire when 62 ballot papers were spoilt because people wrote on them that they wanted to vote for Enoch Powell. When the returning officer asked Ian MacArthur, the elected Conservative Member, what should be done with the rejected ballot papers, he said, "Send them down to Wolverhampton" where Enoch Powell was the MP. It is right that they should be kept in secure places and be available because their historical content is very interesting.

Baroness Morgan of Drefelin: My Lords, I am very grateful to noble Lords for their support for this set of good-housekeeping regulations. It is more than fair to say that they are not contentious. None the less, they are necessary to ensure the proper management of access to election documents, especially now that they are to be stored locally, which I am glad is to be welcomed. The noble Lord, Lord Roberts of Conwy, asked about the security arrangements under which documents will be stored, which is extremely important. He rightly pointed out that these documents are sensitive and that voters have a right to expect reassurance that they will not go astray. I hope I can reassure the noble Lord that local electoral administrators already store documents from local authority and European parliamentary elections, so this will not be a new function for them. They are using tried and tested administrative procedures, and will have appropriate and secure facilities which can be used for documents from the Assembly and parliamentary elections. Unless a court orders otherwise, registration officers are required to store documents in this way for one year, after which they are to be destroyed. So systems are in place.
	The noble Lord asked whether the same conditions will apply to supply an inspection of documents held by all relevant registration officers. The answer is yes. Following amendments made towards the end of last year, the conditions for access to parliamentary election documents are set out in Part 7 of the Representation of the People (England and Wales) Regulations 2001. These regulations insert a new part into the 2001 regulations, which applies those rules with relatively small modifications to reflect differences in the way in which Assembly elections are conducted. We felt that that was the best way to avoid confusion and to ensure a consistent approach to all elections.
	The final point made by the noble Lord, Lord Roberts, related to charges for access to documents. There is no provision for any charge to be made where a person is granted access to inspect documents, but the fee to be paid for a copy of the marked register or list is prescribed in Regulation 120 of the amended 2001 regulations. It is the same as the fee charged for the full register. In data form, the current rate is £20 plus £1.50 per 1,000 entries, or part thereof and, in printed form, £10 plus £5 per 1,000 entries, or part thereof.
	I am afraid that I cannot match the election stories of the noble Lord, Lord Livsey, but I am pleased that at least one of the eight recounts resulted in a win for him. The noble Lord referred to these as good-housekeeping amendments and, on that basis, I am sure that with the support of noble Lords here today I can commend these regulations to the House.

Lord Bassam of Brighton: moved AmendmentNo. 51:
	Clause 44, page 28, line 1, at end insert—
	"(5A) The Secretary of State may by order amend Schedule 3."

Lord Bassam of Brighton: My Lords, this group of amendments relates to Schedule 3, which, as noble Lords will remember from our discussion in Committee, contains a list of offences which are statutory forms of incitement or other inchoate offences. The effect of Clause 44(4) of the Bill and inclusion in Schedule 3 is that the offences are disregarded for the purposes of Clauses 40 and 41. It will not be an offence to encourage or assist the offences in Schedule 3 unless a person intends his action to assist or encourage the commission of those offences. This is to ensure that liability for inchoate offences does not extend too far. It follows the scheme of the Law Commission's draft.
	We predicted that Amendments Nos. 52 to 58 would be necessary in Committee. They add offences to Schedule 3 in addition to the original list composed by the Law Commission. The approach we have taken in adding these offences is consistent with the approach taken by the commission in that they are statutory forms of incitement or statutory forms of assistance or encouragement. These offences include, for example, Sections 19 and 20 of the Misuse of Drugs Act 1971. Section 19 is an offence of inciting any other offence under the Act. Section 20 is assisting or inducing commission outside the United Kingdom of an offence punishable under corresponding law. These are statutory forms of incitement and assistance, and we believe that encouraging or assisting other persons to commit these offences should only be an offence itself where a person intended the other to commit that offence. Therefore we believe they should be added to Schedule 3.
	The final two amendments, Amendments Nos. 51 and 126, would add an order-making power subject to the affirmative resolution procedure to enable changes to be made to Schedule 3. We have already identified some offences which we believe should be added to the schedule, but it is possible that there will be more. For example, as a result of our trawl we have found some statutory offences of incitement in local government legislation that we think ought to be added to Schedule 3. We are endeavouring to complete this exercise during the passage of the Bill, but are not yet confident that we have a complete list. It is therefore a wise precaution to take a powerto amend Schedule 3 subject to the affirmative resolution procedure. The basic purpose of the schedule is to limit rather than to extend liability, and I hope noble Lords will agree that it is sensible to have a power to keep the list under review.
	As this is an order-making power, the Delegated Powers and Regulatory Reform Committee has considered the effects of Amendments Nos. 51 and 126. It reported this morning and has drawn the attention of the House to the fact that the power could be used to remove a provision from Schedule 3 as well as add to it. That is correct. At this stage we do not have in mind any offences that we want to remove from the schedule, but it is conceivable that in the future there might be concerns about restricting liability for offences in the schedule. In that case, we would want to avoid the need to pass further primary legislation to extend liability to those who believe that that offence would be committed. The order-making power is subject to the affirmative resolution procedure, so any attempt by the Government to remove an offence from Schedule 3 would need to be agreed by Parliament, and that in our view is sufficient.
	In view of my explanation, which I hope has been clear for noble Lords, I beg to move.

Lord Henley: My Lords, I thank the noble Lord, Lord Bassam, for introducing these amendments and explaining them to a packed House at twenty to nine on 25 April. I emphasise the date because as the noble Lord made clear, the Government only put down these amendments to the Bill on Monday, 23 April, and it was only yesterday, on 24 April, that a letter from the Minister was sent to my noble friend explaining what the amendments are about. At the same time, the Delegated Powers and Regulatory Reform Committee has managed to have a look at these powers, and I am grateful to the noble Lord for referring to that. I should like to quote from the committee's 8th report, and in doing so to extend my thanks to the members for their extraordinary assiduity in managing to look at these amendments within such a short timescale. I hope that in future the Government, and particularly the Home Office, can manage to give us slightly longer.
	Before I quote from the report, I ought to say that while we will not oppose these amendments now,in the light of what I am about to read from the8th report, we think it would be more appropriate if the Government did not move them now and possibly brought them back at Third Reading. If they are not prepared to do that, we certainly wish to reserve our right to come back to them at that stage. Quite frankly, amendments of this sort put down on a Monday, seen by the Delegated Powers and Regulatory Reform Committee on a Tuesday and sent with a covering letter to us, which are then debated on a Wednesday evening is not quite satisfactory. However, if the Government wish to go ahead at this stage, we will not oppose them. But they might think seriously about not moving the amendments at this stage in the light of what the Delegated Powers and Regulatory Reform Committee has had to say. Paragraph 4 of the 8th report states that:
	"While acknowledging that the power"—
	the power the Government grant themselves in Amendment No. 51—
	"could be used to remove offences as well, the Home Office does not explain why the Secretary of State should have the power, after the enactment of the bill, to impose by order criminal liability for conduct which Parliament has decided should not be an offence. The Committee is particularly concerned that the subsequent removal of an offence listed in Schedule 3 could, by virtue of Clause 53, expose a person to criminal penalties far in excess of those which normally apply to offences created by subordinate legislation. For example, the power to create new offences by order under the Legislative and Regulatory Reform Act 2006 is limited to offences carrying a maximum penalty of not more than two years' imprisonment".
	In paragraph 5, the committee goes on to draw the attention of the House to the implications of the power conferred by the proposed new subsection (5A) in so far as it enables the Secretary of State to remove an offence from Schedule 3. It ends by saying—and I think this should always be emphasised—
	"the House may wish to invite the Government to reconsider the scope of the new power".
	We will want to look at this in greater detail,and with a slightly longer timescale. I hope the Government might consider that as well. As I made quite clear, if they wish to press ahead with this, we reserve our right to come back to it at Third Reading.

Lord Dholakia: My Lords, I support what has just been said about the report of the Delegated Powers Committee. My concern is that when the noble Lord, Lord Bassam, gave us the information from this report, he must have missed out a vital sentence. At the end of the conclusion, the committee says that,
	"the House may wish to invite the Government to reconsider the scope of the new power".
	There is something very serious in relation toClause 51, and there are implications with regard to Clause 44. My advice is precisely the same as that of the noble Lord, Lord Henley: the Government should take this back, look at it and come back at Third Reading or before so that we know what they have in mind, on the basis of which we can decide whether we want to take any further action. For now, it would not be right to discuss further the contents of this report or the Government's response. I see that, although the Government produced a supplementary memorandum, which was considered by the committee, there is no further development other than the recommendations contained in paragraph 5.

Baroness Scotland of Asthal: My Lords, I can confirm what I set out in the letter as being the correct position. We believe that it would be better to provide one defence to all the offences included in Part 2. Amendments Nos. 59 to 61 would remove the crime prevention or prevention or limitation of harm defence in Clause 45 and extend the application of the defence of reasonableness in Clause 46 to all the offences under Part 2. That makes it a great deal clearer.
	We also believe that it would be sensible, given this proposed extension, to put in the Bill some factors that the court could consider when determining whether an act was reasonable. That is the effect of Amendment No. 62. This is a non-exhaustive list consisting of the purpose for which a person claims to have been acting, any authority by which a person claims to have been acting and the seriousness of the offence that he believed or intended would be committed. For these reasons, we resist Amendment No. 63. As we discussed in relation to previous amendments, the reasonableness defence was proposed by the Law Commission as a limit on the potential liability for the belief offences. I believe that it is necessary in that regard to proceed as we now propose.
	I remember that, when this amendment was discussed in Committee, the noble Baroness, Lady Anelay, queried whether the reasonableness defence would cover a whistleblower—a point that has been repeated by the noble Lord, Lord Henley—and gave the example of a civil servant who encourages a journalist. In my letter, I sought to respond to that, following that conversation. As the noble Lord said, I explained that a whistleblower could seek to rely on this defence, but whether the jury accepts that argument is another matter; it is a matter for the jury to judge whether it is reasonable. Both the Home Office and the Law Commission recognised that unmeritorious defendants will seek to rely on this defence. We believe that government AmendmentNo. 62, which gives examples of factors that can be considered in determining reasonableness, will help to guard against this, and so I hope that noble Lords will support it.
	We believe that juries will see through unmeritorious arguments. Indeed, in the example given, the fact that a civil servant is bound by the Official Secrets Act would no doubt be borne in mind by the jury when determining whether he had acted reasonably. Nevertheless, it could be that a jury, considering all the facts, would accept this defence. Of course, the defence would not exempt the civil servant from liability under the Official Secrets Act.
	I hope that that has explained why we have made these changes. Our debates have been very helpful in that regard. We were worried whether people would take adventitious advantage of the reasonableness defence, but we think that this will be a simpler and easier way and agree with the general import of what was said in that regard. I thank all those who participated in the debates, because it has enabled us to make some quite productive changes. I hope that, on that basis, your Lordships will accept government Amendments Nos. 59 to 62.

Lord Henley: My Lords, this is the last of my probing amendments to Part 2. It was tabledas Amendment No. 102 in Committee to elicit a response from the Government as to whether, witha portfolio of offences to be considered underClause 41, if one or all those offences would otherwise be subject to summary trial they would still nevertheless be triable on indictment. Again, the Minister's letter was most helpful. She illustrated in her response that under the provisions of Clause 41 the defendant would be subject to punishment based on the most serious offence out of a possible, say, three, that he believed could have been committed. She went on to say that if he believed that every offence would be committed, he would then be subject to trial under three separate offences of encouraging or assisting under Clause 40.
	Two questions remain. First, were the court to decide that a defendant under Clause 41 would be more appropriately tried under Clause 40, what would the process for converting the prosecution be? Secondly, I was disappointed that the Minister failed to answer my question in Committee whether a portfolio of offences that are otherwise summary offences would be subject under Clause 41 to trial by indictment. I appreciate that Clause 41 could be expediently deployed but seek further clarification from the Minister on those two points. I beg to move.

Lord Bassam of Brighton: moved AmendmentNo. 67:
	Clause 51, page 29, line 35, leave out "charge or"
	On Question, amendment agreed to.
	Clause 52 [Alternative verdicts]:

Lord Bassam of Brighton: moved AmendmentNo. 68:
	Clause 52, page 29, line 37, leave out subsection (1) and insert—
	"(1) If in proceedings on indictment for an offence under section 39 or 40 a person is not found guilty of that offence by reference to the specified offence, he may be found guilty of that offence by reference to an alternative offence."

Lord Bassam of Brighton: My Lords, Amendments Nos. 68 to 72 make changes to Clause 52, which sets out the offences in relation to which a person may be found guilty as an alternative where he or she has been prosecuted for an offence under Clauses 39, 40 or 41. The Law Commission's draft Bill did not make provision for alternative verdicts, but the Government believe that it is important that the same principles should apply where someone is on trial for assisting or encouraging an offence as if he were on trial for the substantive offence.
	The policy intent under the current Clause 52, and under Amendments Nos. 68 to 72, is to parallel the general rules in relation to alternative verdicts, most of which are set out in Section 6 of the CriminalLaw Act 1967, in relation to a trial for the offences encouraged or assisted. The amendments are designed to clarify Clause 52 and to ensure that it replicates as closely as possible the rules on alternative verdicts in trials for the substantive offence.
	So, for example, on a charge of assisting and encouraging murder, the jury could instead return a verdict of assisting and encouraging manslaughter, grievous bodily harm with intent or infanticide. Or, for example, D gives P a baseball bat. The prosecution charges D with an offence under Clause 40, alleging that D believed that P would use the bat to commit grievous bodily harm against V. The jury decides that it does not accept that D believed that grievous bodily harm would be committed. However, it is satisfied that he believed that actual bodily harm would be committed. Just as it would be possible on a charge of GBH to find an accused guilty of ABH instead, it would be possible for a jury to convict, as an alternative to the offence of encouraging or assisting GBH, on the offence of encouraging or assisting ABH.
	Amendment No. 70 also sets out what should happen in relation to guilty pleas. This replicates the position taken in Section 6(1)(b) of the Criminal Law Act 1967. The position is that a person may plead guilty to assisting or encouraging a lesser offence, which would lead to an alternative verdict on a trial for the offence with which he was charged. For example, D is charged with encouraging or assistingP to rob X. D denies this, but says that he believed that P was planning to steal something from X and, therefore, is prepared to plead guilty to assisting theft. It would be a matter for the prosecution as to whether or not it accepted that plea or insisted on a trial for assisting robbery.
	Amendments Nos. 71 and 72 make consequential additions to Clause 52(5), which preserves the operation of the general rules in relation to alternative verdicts under Section 6 of the Criminal Law Act 1967. I hope that noble Lords will accept these amendments of clarification. I beg to move.

Baroness Scotland of Asthal: My Lords, it seems that we are taking turns. Amendments Nos. 74, 76, 79, 80, 135 and 138 concern the Armed Forces and the impact that Part 2 will have on the law that governs them. Members of the Armed Forces, as well as being subject to the criminal law of England and Wales wherever in the world they happen to be, are also subject to service disciplinary offences, which are peculiar to those serving in the Armed Forces. Some of the more serious disciplinary offences—for example, assisting an enemy—are punishable with a maximum sentence of life imprisonment, and some disciplinary offences also apply to certain civilians, such as family members of service personnel and contractors.
	The Law Commission's report did not considerthe position of the Armed Forces. The Ministry of Defence wishes Armed Forces legislation to remain consistent with the criminal law. It is a service discipline offence to incite service personnel, or a civilian subject to service discipline, to commit a service disciplinary offence, such as looting. The policy intention of the amendments is to replace references to incitement in Armed Forces and service discipline legislation with the offences in Part 2.
	Amendments Nos. 74 and 76 insert a schedule of enactments that affect the Armed Forces, and the principal amendment is to the Armed Forces Act 2006, which received Royal Assent on 8 November last year but has yet to be implemented. The amendments affect Sections 40 and 46 of the 2006 Act. As drafted, Section 40 makes it an offence to incite service personnel, or civilians subject to service discipline,to commit a service disciplinary offence. The amendment of Section 40 will apply the three new statutory offences in place of incitement to service disciplinary offences. Section 46 provides that members of the Armed Forces, and civilians subject to service discipline, commit a criminal offence if they incite another to do an act that would be a criminal offence if done in England and Wales, but the act itself need not be in England and Wales. The amendment of Section 46 will apply the three new statutory offences to criminal conduct committed outside England and Wales where members of the Armed Forces, and civilians subject to service discipline, encourage or assist the commission of the offence.
	Amendments Nos. 79, 80, 135 and 138 are consequential on those amendments. I hope that your Lordships will accept this group as necessary and important. I beg to move.

Baroness Scotland of Asthal: moved Amendment No. 76:
	Before Schedule 5, insert the following new Schedule—
	"Amendments relating to service lawCriminal Justice Act 1982 (c. 48)
	1 In section 32 of the Criminal Justice Act 1982 (early release of prisoners), in subsection (2A) for "incitement" substitute "encouragement and assistance".
	Sexual Offences (Amendment) Act 1992 (c. 34)
	2 In section 6 of the Sexual Offences (Amendment) Act 1992 (interpretation), in subsection (1A) for "incitement" substitute "encouragement and assistance".
	Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)
	3 In section 114 of the Powers of Criminal Courts (Sentencing) Act 2000 (offences under service law), in subsection (3) for "incitement" substitute "encouragement and assistance".
	Sexual Offences Act 2003 (c. 42)
	4 (1) The Sexual Offences Act 2003 is amended as follows.
	(2) In paragraph 93A of Schedule 3 (sexual offences for purposes of Part 2), in sub-paragraph (3) for "incitement" substitute "encouragement and assistance".
	(3) In paragraph 172A of Schedule 5 (other offences for purposes of Part 2), in sub-paragraph (2) for "incitement" substitute "encouragement and assistance".
	Criminal Justice Act 2003 (c. 44)
	5 In section 233 of the Criminal Justice Act 2003 (offences under service law), in subsection (2) for "incitement" substitute "encouragement and assistance".
	Gambling Act 2005 (c. 19)
	6 In Part 1 of Schedule 7 to the Gambling Act 2005 (relevant offences), in paragraph 22A for "incitement" substitute "encouragement and assistance".
	Armed Forces Act 2006 (c. 52)
	7 The Armed Forces Act 2006 is amended as follows.
	8 In section 39 (attempts), in subsection (4)(b) for "inciting another person to commit" substitute "encouraging or assisting the commission of".
	9 For section 40 (incitement) substitute—
	"40 Encouraging and assisting
	(1) A person subject to service law commits an offence if he encourages or assists the commission of a service offence (other than an offence under section 42).
	(2) A civilian subject to service discipline commits an offence if he encourages or assists the commission of an offence mentioned in section 39(4).
	(3) Reference in this section to encouraging or assisting the commission of an offence is to the doing of an act that would have constituted an offence under Part 2 of the Serious Crime Act 2007 if the offence encouraged or assisted had been an offence under the law of England and Wales.
	(4) In determining whether an act would have constituted an offence under that Part, section 44(4) of that Act has effect as if for "offences under this Part and listed offences" it read "offences under sections 39 and 40 of the Armed Forces Act 2006".
	(5) Any requirement in that Part to specify matters in an indictment applies for the purposes of this section as it applies for the purposes of that Part, but with references to the indictment being read as references to the charge sheet.
	(6) A person guilty of an offence under this section is liable to the same punishment as he would be liable to if guilty of—
	(a) the service offence encouraged or assisted; or(b) if convicted of the offence under this section by reference to more than one such service offence, any one of those service offences."
	10 Accordingly, in the heading immediately before section 39 for "incitement" substitute "encouragement and assistance".
	11 For section 46 (inciting criminal conduct) substitute—
	"46 Encouraging or assisting criminal conduct
	(1) Subsection (2) applies if a person subject to service law, or a civilian subject to service discipline, encourages or assists the doing of an act (or one or more of a number of acts) that, if done in England or Wales, would be punishable by the law of England and Wales.
	(2) Regardless of where that act (or those acts) might be done and of his state of mind with respect to that question, his encouragement or assistance shall be treated for the purposes of section 42(1) as an act that is punishable by the law of England and Wales (so far as it is not such an act in any event).
	(3) Reference in this section to encouraging or assisting is to an act that would constitute an offence under Part 2 of the Serious Crime Act 2007 disregarding any provision in that Part about the place where the act (or acts) being encouraged or assisted might be done or the accused's state of mind with respect to that question."
	12 In section 48 (provision supplementary to sections 43to 47), in subsection (1)(a) for "incitement" substitute "encouragement or assistance".
	13 In Schedule 2 (list of serious offences)—
	(a) in paragraph 11 for "inciting another person to commit" substitute "encouraging or assisting the commission of";(b) in paragraph 13 for "of incitement to commit" substitute "under Part 2 of the Serious Crime Act 2007 of encouraging or assisting the commission of"."
	On Question, amendment agreed to.
	Schedule 5 [Minor and consequential amendments: Part 2]:

Lord Bassam of Brighton: moved AmendmentNo. 77:
	Schedule 5, page 59, line 39, at end insert—
	" Section 30(4) of the Theft Act 1968 (c. 60) (restriction of proceedings against spouses and civil partners)."

Lord Bassam of Brighton: My Lords, this is the first of two groups of amendments which make changes to Schedule 5. Schedule 5 relates to Clause 56 and sets out minor and consequential amendments to existing legislation. The first group of amendments relates to Part 1 of Schedule 5. The common-law offence of inciting the commission of another offence is repealed by Clause 54. Part 1 of Schedule 5 lists references in existing legislation to the common-law offence of incitement which are to be read as references to the new offences in Clauses 39, 40 and 41.
	As is the case with respect to Schedule 3, the original list of offences in Schedule 5 was composed by the Law Commission. We have had a careful trawl through existing legislation and have gone on to identify further references to common-law incitement which we think it necessary to add to Schedule 5. These are contained in Amendments Nos. 77, 78 and 81 to 88. They include, for example, the reference to common law incitement in Section 30(4) of the Theft Act 1968 concerning the restriction of proceedings against spouses and civil partners. Section 30(4) of that Act sets out that the consent of the Director of Public Prosecutions is needed for any prosecution against a person for any offence of stealing or doing unlawful damage to property which belongs to that person's wife, husband or civil partner, or for any attempt, incitement or conspiracy to commit such an offence.
	We are not entirely certain that we have the contents of Part 1 exactly right, and our officials are still going through the results of the trawl of legislation to ensure that no other provisions need to be added to Part 1. Perhaps I should invite your Lordships also to offer up any that they think we have missed; that would be very helpful. There is already a power to amend the list in Part 1 of Schedule 5 by order under Clause 56(3). However, as is the case with Schedule 3, we will seek to make any further changes that we identify during the Bill's proceedings.
	I hope that, having heard that technical and clarifying information, noble Lords will feel happy to accept the amendments. I beg to move.

Baroness Anelay of St Johns: My Lords, I begin by making it clear that I support the amendments. The Minister very properly said that officials are looking to see whether other additions need to be made. In terms of parliamentary procedure, we are at an early stage in the Bill—not many Bills start in this House—so I appreciate that some proper technical amendments may need to be made. However, is the Minister able to indicate at this stage whether the Government hope to do some more tidying up on this aspect at Third Reading or is it anticipated that that will drift into another place?

Lord Bassam of Brighton: My Lords, given that the Bill is a "Lords starter", we will try to maximise the tidying-up exercise in this House. That said, as I am sure the noble Baroness will appreciate, some things may well have to be picked up at a later stage, although I am probably about to receive a note that tells me that I am wrong. In fact, I understand that it is unlikely that the major tidying-up will be done at Third Reading. However, if we can do it, we will and, if not, it will have to be done in another place.

Lord Bassam of Brighton: moved Amendments Nos. 78 to 88:
	Schedule 5, page 60, line 2, at end insert—
	" Section 7(2)(ix) of the Sexual Offences (Amendment)Act 1976 (c. 82) (meaning of "rape offence" in relation to court martial proceedings)."
	Schedule 5, page 60, line 17, leave out "Section 32(1)(b)" and insert "In section 32(1)"
	Schedule 5, page 60, line 18, at end insert "—
	(a) paragraph (b)(iv) (imprisonment for excluded offence etc);(b) paragraph (c)(iv) (imprisonment for service offence corresponding to excluded offence etc), inserted by paragraph 94(2) of Schedule 16 to the Armed ForcesAct 2006 (c. 52)."
	Schedule 5, page 61, line 1, leave out from beginning to "(cases" and insert "In the Criminal Justice Act 1991 (c. 53)—
	( ) section 53(7)"
	Schedule 5, page 61, line 2, at end insert ";
	( ) section 86A(4) (offences in respect of which prisoner custody officers have powers in relation to persons other than prisoners)."
	Schedule 5, page 61, line 4, leave out "section 2(1)(g)" and insert "subsections (1)(g) and (3)(k) of section 2"
	Schedule 5, page 61, line 8, at end insert—
	" Section 9A(4) of the Criminal Justice and Public OrderAct 1994 (c. 33) (offences in respect of which custody officers at contracted out secure training centres have powers in relation to persons other than those detained in the centre)."
	Schedule 5, page 61, line 29, at end insert—
	" Paragraph 8 of the Schedule to the Sexual Offences (Protected Material) Act 1997 (c. 39) (sexual offences for the purposes of that Act)."
	Schedule 5, page 62, line 1, leave out "61(5)(b)" and insert "62(1)(b)"
	Schedule 5, page 62, line 12, leave out paragraph (e)
	Schedule 5, page 62, line 29, at end insert—
	" Section 76(3)(p) of the Serious Organised Crime and Police Act 2005 (c. 15) (offences giving rise to financial reporting order)."
	On Question, amendments agreed to.

Baroness Scotland of Asthal: My Lords, I am sure that the House will be pleased to know that this is ourlast group of amendments. In moving Amendment No. 89, I shall speak also to Amendments Nos. 90 to 93, 130 to 132 and 137. They are a series of minor and consequential amendments to Part 2 of Schedule 5, which contains minor amendments to existing legislation consequential on the abolition byClause 54 of the Bill of the common-law offenceof incitement to commit another offence. The amendments make further changes to existing legislation for the same reason.
	Amendment No. 89 makes a minor amendment to Section 19 of the Misuse of Drugs Act 1971 to clarify the meaning of "such an offence" in that provision. The amendment replaces "such an offence" with,
	"an offence under any other provision of this Act"—
	that is, the Misuse of Drugs Act—and does not change the law. This amendment will simply help to clarify what is meant by Section 19 of that Act, and it follows the interpretation of this section by the courts.
	Amendment No. 90, coupled with Amendment No. 130, repeals certain sections of the Magistrates' Courts Act 1980 in relation to penalties and mode of trial for summary and either-way offences. Section 32(1)(b) of that Act provides that on summary conviction for inciting an offence that would be triable either way, a person cannot be liable to a penalty greater than he would be liable to on summary conviction. Under the mode of trial provisions set out in Clause 50, it will not be possible to try someone summarily for assisting and encouraging an offence which is triable either way, so this subsection needs to be repealed. Section 45 of the Act provides that inciting a summary offence should be triable summarily. Paragraph 35 of Schedule 1 provides that the offence of inciting an either-way offence should be triable either way. Those provisions are repealed, as the mode of trial for the new offences will follow Clause 50.
	Amendments Nos. 92 and 132 are technical measures to repeal references in the Public OrderAct 1986 to Section 45 of the Magistrates' CourtsAct 1980. Amendment No. 91, coupled with Amendment No. 131, repeals Article 60(1) of the Magistrates' Courts (Northern Ireland) Order 1981. These make similar amendments to those to the Magistrates' Courts Act in respect of Northern Ireland, as the Magistrates' Courts Act applies only to England and Wales.
	Amendment No. 93 ensures that the reference to incitement in paragraph 10 of Schedule 2 to the Proceeds of Crime Act 2002—incitement to commit a criminal lifestyle offence—is to be read only as a reference to the offence under Clause 39; that is, intentionally assisting or encouraging an offence. That is because the consequences of being found guilty of a "lifestyle" offence under POCA are very significant; for example, a confiscation order is applicable. We therefore think it is appropriate only where a person has intentionally encouraged one of those offences.
	I hope that it will give noble Lords considerable pleasure when I beg to move this amendment, confident as I am that, thereafter, we will all be able to go home.

Lord Bassam of Brighton: moved Amendments Nos. 90 to 93:
	Schedule 5, page 62, line 34, at end insert—
	"Magistrates' Courts Act 1980 (c. 43)
	(1) The Magistrates' Courts Act 1980 is amended as follows.
	(2) In section 32(1) (penalties for offences triable either way as a result of Schedule 1 to that Act) omit paragraph (b).
	(3) Omit section 45.
	(4) In Schedule 1 (offences triable either way) omitparagraph 35."
	Schedule 5, page 62, line 34, at end insert—
	"Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26))
	Omit Article 60(1) of the Magistrates' Courts (Northern Ireland) Order 1981."
	Schedule 5, page 62, line 38, at end insert—
	"Public Order Act 1986 (c. 64)
	(1) The Public Order Act 1986 is amended as follows.
	(2) In each of the provisions mentioned in sub-paragraph (3) omit the words from "notwithstanding" to the end.
	(3) The provisions are—
	(a) section 12(10);(b) section 13(13);(c) section 14(10);(d) section 14B(7)."
	Schedule 5, page 63, line 15, at end insert—
	"Proceeds of Crime Act 2002 (c. 29)
	After sub-paragraph (1) in each of paragraph 10 ofSchedule 2 to the Proceeds of Crime Act 2002 and paragraph 10 of Schedule 5 to that Act (inchoate offences which are lifestyle offences) insert the following sub-paragraph—
	"(1A) An offence under section 39 of the Serious CrimeAct 2007 of doing an act capable of encouraging or assisting the commission of an offence specified in this Schedule.""
	On Question, amendments agreed to.